The decision of the responsible authority in relation to planning permit application no KP302/05 is affirmed. The Tribunal directs pursuant to section 85(1) Planning and Environment Act 1987 that no permit shall issue.

Mr David Goodwin, planning consultant of David Goodwin & Co.

Mr Peter Soding, planning consultant of Tixxis Pty Ltd and Ms Anita Ransom, planning officer.

1 Bossak Building Services have applied under section 77 Planning and Environment Act 1987 (PE Act) for a review of Kingston City Council's (council) decision (in permit application no. KP302/05) to refuse to grant a permit to construct two (2) dwellings (one double storey at the front and a single storey at the rear) on the land at 7 Hillston Road, Moorabbin.

2 The application for permit was lodged with the council on 6 September 2005. Following the giving of notice of the application one objection was received.

3 There were no referrals of the application under section 55(1) PE Act. The application was referred internally to council's development engineer and council's vegetation management officer. The development engineer advised no objection subject to conditions being included in the permit. The vegetation officer raised concerns in relation to a pin oak tree on the neighbouring property to the west of the site. This tree has since been removed.

4 On 16 March 2006 council's delegate considered the application and, consistent with its planning officer's recommendation, determined to refuse to grant a permit.

5 The grounds of refusal were:

1. The proposal would detrimentally affect the visual amenity of the neighbourhood through the excessive visual bulk and mass of dwelling 1, and the removal of part of the low rock retaining wall at the front of the site.

2. The proposal constitutes an over-development of the site.

3. The proposal fails to satisfy the Residential Development Policy (Clause 22.11) of the Kingston Planning Scheme.

4. The proposal does not satisfy the objectives and standards of Clauses 55.02-1 (Neighbourhood Character), 55.02-2 Residential Policy, 55.03-8 (Landscaping), 55.03-9 (Access), 55.04-2 (Walls on Boundaries), and 55.06-1 (Design Detail) of the Kingston Planning Scheme.

5. The proposal would have a detrimental impact on the health of the existing Pin Oak tree located on the adjoining property at No. 5 Hillston Street.

6 The application for review was lodged with the Tribunal on 9 May 2006. The stated grounds for review rebutted the grounds for refusal.

7 Council and the applicant's representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing, are attached to the Tribunal's file.

8 Mr Mark Sheppard of David Lock Associates gave expert evidence for the council as to urban design and neighbourhood character.

9 A tree inspection report by Carney and Stone, arboricultural consultants, as to trees on the site and the neighbouring property was relied on by the applicant at the hearing on the basis that no other party called any such evidence or contested its contests. I accepted the report on this basis.

10 The hearing of this proceeding occupied one day. Following the hearing, I inspected the land and the neighbourhood at large.

11 The land is located on north side of Hillston Road, about 100 metres east from the corner of Hillston Road and Nepean Highway. It is slightly irregular in shape and has the following dimensions:

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frontage of 15.86 metres;

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depths of 54.04 metres (north-east side) and 49.68 metres (south-west side);

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rear boundary of 15.25 metres;

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an area of 790m².

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a fall of about 0.5 metres across the site from north to south.

12 The site is currently occupied by a single storey brick dwelling with tiled pitched roof.

13 The site's surrounds are described in the parties' written submissions and Mr Sheppard's evidence.

14 It is proposed to construct two new dwellings on the site, the front dwelling being two storey with a double garage facing the street with a separate crossing, the upper level being recessed and of a hipped and gable roof, and the rear dwelling being single storey.

15 The planning officer's report describes the proposal as follows:

61m2 (including 61m2 of secluded private open space)

61.9m2 (including 61.9m2 of secluded private open space)

Building Materials and colours have been nominated as:

"Rustic Earth" Face brickwork to ground floors, Beige render to first floor and porches

The proposal would result in a site coverage of 43%, and a site permeability of 33.3%.

16 The land is zoned Residential 1 under the Kingston Planning Scheme. At clause 32.01, the relevant purposes of the Residential 1 zone, in addition to implementing the State and Local planning policy framework, are:

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

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community needs.

17 In that zone a permit is required under clause 32.01-4 to construct two or more dwellings on a lot. Such developments, if less than four storeys, 'must meet the requirements of Clause 55'. The requirements of clause 55 are that a development must meet all of the objectives of that clause and should meet all of the standards of the clause. The schedule to the residential zone in the planning scheme varies some of the requirements of clause 44 in particular as to private open space.

18 The parties referred to other provisions of the planning scheme including:

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State Planning Policy Framework (SPPF) - clauses 12, 14.01 and 16.2;

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Local Planning Policy Framework (LPPF) and the Municipal Strategic Statement (MSS) clauses 21.05 (residential land use), 22.11 (residential development policy), the area of the land being designated an incremental change area;

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Clause 55 (ResCode) and 65 (decision guidelines);

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Neighbourhood Character Guidelines - February 2004: Character Area 4.

19 I have considered the submissions of the parties, the material produced at the hearing and on VCAT's file, and my inspection of the site.

20 Whilst the proposal retains the existing low rock rubble wall at the front of the site, 3m of this wall is removed to provide a second access driveway to the rear unit. Mr Goodwin's submission was that this will not detrimentally affect the visual amenity of the streetscape and showed us one example, at 14 Hillston Road, albeit with a wider than usual frontage, which had two access driveways through the rubble stone wall. He also drew attention to the neighbouring villa unit property at 9-13 Hillston Road with front brown brick walls varying in height from 1.8 - 0.75m.

21 Mr Sheppard's urban design evidence relied on the policy at clause 22.11 which included policy that development positively respond to neighbourhood character having particular regard to those identified in the Kingston Neighbourhood Character Guidelines - February 2003.

22 His evidence was that clause 22.11 identified areas of special character including this area as Character Area 4 as having a special character as well as being designated as an area of incremental housing change. The study for Character Area 4 identifies the front boundary rubble stone walls most front gardens being grassed as characteristics considered to make a "critical" contribution to the neighbourhood character.

23 He said that approximately 45% of the front garden will be taken up by two concrete driveways and, whilst the remaining area may technically fall within the definition of most of the front garden, he considered this did not place sufficient respect to the mainly grassed front garden characteristic. He considered a more responsive solution would be to combine the driveways to the two dwellings into a single driveway, thus reducing the amount of concrete pavement.

24 I accept Mr Sheppard's evidence and consider that the removal of 3m of the rubble stone fence combined with the introduction of the second driveway does not respond and respect the existing and preferred neighbourhood character of the area. My inspection confirmed that in this section of Hillston Road, the rubble stone front walls and the grassed front areas are significant elements of the neighbourhood character which should be maintained.

25 I agree with council that the proposal is not site responsive in this regard and that removal of part of the rubble stone fences and the introduction of a second driveway to this site is not acceptable.

26 Some alternatives were discussed such as introducing 2-3m of stone paving into the driveways so a pedestrian would observe a continuation of the colours and structure of the rubble stone walls in walking past, but I believe this would be an insufficient as a technique to mitigate the impact.

27 One relevant aspect in the proposal's front presentation is the removal of a significant tree from the western neighbouring property. Mr Soding suggested this should be counted against the development as the removal of a tree to obtain a planning advantage. However there was no evidence that the permit applicant had instigated or paid for the tree's removal, the responsibility for its removal being that of the neighbour. In any case the removal of the tree makes preservation of the grassed front area more necessary and rather than creating a planning advantage does the opposite as removing potential screening of the upper level of the front unit.

28 Whilst the front dwelling is setback about 3.5m from the eastern boundary, consistent with the wider setback characteristic of the area, it is proposed to be built to the western boundary. This zero lot boundary is combined with a double garage forming part of the façade of the front dwelling included in the structure of the dwelling.

29 Mr Sheppard recognised that elsewhere in the area it is relatively common for carports and garages to be built to a side boundary, but my observation is that they are usually built further back and read as separate structures rather than part of the house.

30 The Neighbourhood Character Study for Character Area 4 identifies building placement as a characteristic making a critical contribution to neighbourhood character, and these characteristics include:

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Narrow side setback 1-3m;

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Front setback 7-10;

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Wider side setback 3-5m.

31 It also identifies complex hipped roof forms as a characteristic although not identified as major or critical. Mr Sheppard contrasted this aspect of the typical characteristics in Character Area 4 with side setback characteristics in Character Area 1. He said the Character Area 1 document did not identify these aspects as major or critical contribution to the character of the area, reinforcing the point that Character Area 4 is an example of one where building placement makes a major contribution to neighbourhood character and in which, therefore, the design of new development should reinforce the established rhythm of buildings in the street and retain the existing single dwelling character of the streetscape as contemplated by clause 22.11.

32 Mr Goodwin in response pointed to the number of garages and carports on boundaries in the area, but I prefer Mr Sheppard's evidence to those submissions, and find that the failure to setback the building from the western boundary by at least 1-3m, and incorporating the garage in the form of the frontage of the dwelling is uncharacteristic of the area and is not acceptable.

33 Comments were made about the second dwelling at the rear being built boundary to boundary, and Mr Sheppard criticised this aspect. However, the study for Character Area 4 noted that rear garden characteristics cannot be identified for the area as a whole, however garden size and vegetation must be included in the consideration of neighbourhood character, particularly in terms of boundary screen planting and trees visible from the street.

34 I find from the landscape plan produced that the landscaping in the private open space of the rear of the second dwelling and along the driveway will be satisfactory.

35 The upper level of dwelling 1 is a typical presentation to the street of a hipped roof two storey dwelling and one room with a gable roof front projecting forward. That dwelling's upper level north-east elevation also presents a long side wall, unrelieved except for two highlight windows.

36 Clause 22.11 provides that:

Where the local neighbourhood is characterised by single storey development and this characteristic makes a major or critical contribution to neighbourhood character, new 2 storey development should incorporate rooms within the roof form of attic style dwellings, and should set the second storey building envelope back from the ground level envelope.

37 Mr Sheppard considered that as a consequence the proposed two storey form was not an acceptable response to the neighbourhood character of the area.

38 The study for Character Area 4 identified the type and height of development as a characteristic making a major contribution to neighbourhood character and stated that most houses are one storey high oriented towards the street and detached.

39 The application of the policy is not to discourage two storey developments but rather to direct that the second storey should incorporate rooms within an attic roof form.

40 The Tribunal has observed on many occasions that it is difficult to apply neighbourhood character policies as a bar to two storey developments, and those comments apply in this case, especially when on any of these sites, a two storey dwelling could be erected, not in an attic style, without a permit. There is no Design or Development Overlay or other form of height control which imposes such a constraint.

41 Two matters were agreed at the hearing, firstly that the frontage of the upper level should be further recessed towards the rear of the building by an additional metre or so, and secondly that the side upper level wall on the north-eastern elevation needed some treatment to relieve its visual bulk.

42 Council had required the deletion of a large area of the upper level to provide articulation to this side wall. I consider this is not necessary, but that an appropriated design outcome could be achieved by incorporating vertical elements in window forms (albeit with an obscure glazing to 1.75m above ground level) or by recessing to an extent of up to 0.5m or so. There are many architectural techniques available to relieve the blank nature of this wall which will be the prospect enjoyed from the small private open spaces of the neighbouring units.

43 I would encourage an outcome of this nature, but, after reflection, I do not think these changes could be implemented by condition, particularly having regard to my decision in relation to the rubble fence and the second driveway.

44 The next question is whether the second level should be in an attic form. The consequence of an attic style upper level would be a substantial reduction in the upper level floor space, which would prevent the provision of a swelling with the facilities intended by the applicant, which in my view are appropriate for the area. This, I believe, would have the consequence that it would be not possible to develop a building with the accommodation contemplated by the front dwelling in this case, and I do consider that accommodation of that nature is ordinarily expected in today's market.

45 The other aspect of the "attic" style is that I find it is not in accordance with the neighbourhood character of the area and is in face uncharacteristic of the area. There are a number of two storey buildings in traditional form in surrounding streets, and only a handful of examples of attic style buildings. The design response that the attic style has produced in the neighbourhood is very bulky as the roof form has the ridge parallel to the street so that the visual bulk is emphasises, particularly with the dormer windows facing the street. Another odd feature is that the reference to the attic style roof form is a general policy in clause 22.11 whilst the Character Area 4 statement makes no mention of attics as a major or critical contribution to character

46 In the face of such an anomaly it is preferable to have a traditional second level in the manner described in this proposal with the changes discussed above.