1 Before the development begins, revised plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans (June 2004) submitted in relation to the application but modified to show:

a re-arrangement of unit 3 to allow 1 metre setback from the rear boundary for the garage and laundry, and a 2 metre setback for the dining/kitchen area;

b alteration to units 1 and 2 to compress those units without reducing the front setback;

c a schedule of colours, finishes and materials to be used in the external surfaces of the proposed dwellings, garages and paving;

d a landscaping plan in accordance with the Hobsons Bay City Council Landscape Guidelines and providing for the planting of at least two canopy trees in the front yard and one canopy tree in the rear yard of each dwelling;

e alterations to driveway and landscaping areas in accordance with the report of Andrew O'Brien and Associates Pty Ltd dated 24 June 2004.

2 The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Before the occupation of the buildings authorised by this permit, landscaping as shown on the endorsed plan must be planted to the satisfaction of the Responsible Authority and be satisfactorily maintained thereafter.

4 Unless with the further written consent of the Responsible Authority no fence must be constructed on the front boundary of the land.

5 The Applicant/Owner shall be responsible to meet the costs of all alterations to and reinstatement of the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The applicant/owner shall be responsible to obtain the prior specific written consent of the Council or other relevant Authority for such alterations and reinstatements and shall comply with conditions required by the said Authority in relation to the execution of such works.

6 The redundant vehicle crossings must be removed and the footpath and nature strip reinstated and made good to the satisfaction of the Responsible Authority at the full cost of the applicant/owner.

7 The buildings and works hereby approved must be drained to the satisfaction of the Responsible Authority.

8 This permit will expire if one of the following circumstances applies:

a The development is not started within one year of the date of this permit.

b The development is not completed within two years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

9 Access must be designed to ensure that all vehicles entering and leaving the site may do so in a forward direction.

10 Any alterations to the road must be carried out at the expense of the permit holder.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Mr A. Hooper of Counsel (Direct Brief) appeared on behalf of the Applicant for Review.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

1 The review site is situated on the south side of Civic Parade and has a frontage of 16.8m, a depth of 45.1m and a total site area of 758m2. It is improved by a single storey weatherboard dwelling. The site is located amid a residential area generally comprising single level dwelling stock. Several single storey units are located at No. 68 Civic Parade. A single storey dwelling (presently up for sale) is situated at No. 64 Civic Parade. Another single storey dwelling lies to the rear, at No. 45 Seves Street. An application to develop that land with two single storey units is presently before the Tribunal.

2 At the commencement of the hearing the applicant sought leave to substitute amended plans for the plans that had accompanied the original application. The amended plans had been pre-circulated prior to the hearing. There was no objection to this course and accordingly leave was granted.

3 The applicant seeks a permit to construct three two-storey dwelling on the land. The Responsible Authority described the amended plans as follows:

The ground floor component of each dwelling comprises:

* Double garage, units 1 and 2, single garage, unit 3.

The first floor component of each dwelling comprises:

* Three bedrooms, units 1 and 2, 2 bedrooms, unit 3

* Two double garages join units 1 and 2 as a single storey element.

* Upper levels are smaller than lower levels providing a degree of articulation.

* Front setback is 6.3m. First floor set back 7.1m from frontage.

* Driveway along eastern side with new crossing 2 metres to the west of existing crossing thus providing a curved driveway alignment at the front of the land. Garage to unit 3 in line with driveway at rear.

* Western setback varies 1 metre to 4 metres, eastern setback generally 4.5m.

* Total height not specified but scales at about 6.6m.

* Face brick and bagged finish with some weatherboard sections, roofs hipped, tiled at 17 degree pitch.

* Private yard space for each unit between 40 and 50 sq m.

* A landscaping plan has been provided as part of the amended plans.

4 The original plans were advertised and attracted a number of objections. These were summarised by the Responsible Authority as follows:

* Does not respect neighbourhood character, visually intrusive, especially double storey rear unit.

* Overshadowing including proposed solar hot water system.

* Overdevelopment/buildings are excessive in height and scale.

* Insufficient parking/would cause parking problems as there is no standing in this area during school hours.

* Traffic issues, particularly in relation to the school crossing.

* Utility infrastructure inadequate especially drainage.

5 On 16 February 2004, under delegation, the original application was refused on the following grounds:-

1. The proposed development is contrary to the following sections of the Hobsons Bay Planning Scheme.

* The medium density housing objective of the State Planning Policy Framework.

* Objectives 1 and 2 of the residential section of the Local Planning Policy Framework.

2. The proposal fails to meet the following objectives of Clause 55 of the Planning Scheme:

3. The proposed development is not respectful of the neighbourhood character of the area by reason of the double storey development at the rear of the site, the bulky appearance of the upper storey when viewed from the front and the inadequate front setback.

4. The proposed double storey wall on the western boundary is an inappropriate design response and would cause loss of daylight to a window on adjoining property.

5. The proposal provides insufficient parking for this location and a poor driveway design.

6 The applicant now seeks a review of the Responsible Authority's decision.

7 On the hearing each of the parties tabled and read written submissions. Mr Hooper called evidence from Mr M Ryan, a Town Planning Consultant, and Mr R. Dare, a Landscape Architect. Both witnesses tabled and spoke to written statements and were cross-examined. A traffic report was provided by Mr M. Harridge, but Mr Harridge was not called to give evidence. Following the hearing the Tribunal conducted an inspection of the area surrounding the review site.

8 Something needs to be said at the outset regarding the context of this application. Mr Yeoman conceded that the amended plans were far superior to those originally rejected by the Responsible Authority. However, the Council has adopted a Neighbourhood Character study which was submitted to the Minister on 13 May 2003. The Council proposes to incorporate the Neighbourhood Character study as a reference document within the planning scheme. The Tribunal recognises that this document is "seriously entertained" and entitled to weight. However, it is nonetheless a document containing guidelines which must be interpreted and applied in accordance with the prevailing circumstances. On no account can such a document be employed as a means of circumventing other provisions of the scheme.

9 In this case Mr Yeoman placed great reliance on the Design Guidelines for the relevant precinct (Precinct No. 3) which read as follows:

To maintain the sense of openness in backyards and the tree canopy backdrop to the streetscapes.

If two or more dwellings are proposed the dwelling(s) at the rear should be a single storey form.

Concentration of the building bulk at the rear of the site.

10 These are sensible enough guidelines, but they must be viewed in context. Civic Parade is in a Road Zone 1 category. The site is situated within walking distance of a major Activity Centre, within 100m of a busy local neighbourhood shopping strip, 350m from the beach and 600m from a railway station. In these circumstances it is nonsense to treat a guideline as if it acted as a statutory prohibition against two storey development. It needs to be borne in mind that, while the most prevalent building form in the neighbourhood is single storey, there are many two storey dwellings, and these can be constructed "as of right". This is an area ripe for change. It has an emerging character and undoubtedly many replacement dwellings will manifest a two storey form. Moreover, two storey development normally results in a lower site coverage, with additional space becoming available to allow the planting of vegetation. In this case, site coverage is a modest 41%.

11 The first guideline against which this proposal must be assessed is ResCode. Measured against the quantitative criteria of that document, the proposal fares well, comfortably meeting height/setback, site coverage and permeable surface requirements. There is a minor (400mm) shortfall in the front setback, but this is not significant in this neighbourhood.

12 The fact is that no amenity issues arise with the single storey units to the west, the rear of which are set back 1.2m from the common boundary. No objection was received from the owners of the property to the east which is, in any event, a likely candidate for redevelopment. Some amenity issues arise with the property to the rear owned by Mrs Powell. However, the suggestion by Mr Ryan that the footprint of Unit 3 be moved forward slightly would result in a situation where overshadowing falls comfortably within ResCode parameters. No privacy issues arise. Any effect on the property at No.45 Seves would therefore be minimal. There will be adequate scope for landscaping and, in that regard, the Tribunal accepts the evidence of Mr Dare.

13 Both Mr Grech and Mr Mauro had "in principle" concerns with two storey development although, the Tribunal notes, Mr Grech resides in a substantial two storey house, and there are several other examples of two storey development in that street. For reasons the Tribunal has endeavoured to explain, this "in principle" opposition cannot withstand close scrutiny.

14 The draft Neighbourhood Character guidelines, properly understood and applied, will no doubt provide a useful tool for assessing future applications for medium density housing. However, in the Tribunal's view, the Council has misunderstood and misapplied the document in this case. The location is a desirable one for medium density development, amenity implications are minimal and, within the provisions of the planning scheme, there is wide policy support for the proposal. Accordingly, subject to certain modifications to Unit 3, as foreshadowed by Mr Ryan, the Tribunal believes that a permit should be granted for the proposal.

15 For all the foregoing reasons the Tribunal will make the necessary order.