For the Respondents/Objectors: Mr David Robinson represented himself and his family, and 15 other Objectors whose names are listed on the opening page of his written submissions at the hearing.

Mr David Goodwin, Town Planning Consultant and Valuer of David Goodwin and Co, appeared to represent ten Objectors whose names are listed on the opening page of his written submissions to the hearing.

attended the hearing and presented (either) written and/or oral submissions. Mr and Mrs D Seator, and Mr and Mrs J Henry attended but did not make further submissions.

All parties made both written and verbal submissions and tendered a number of plans, photographs, and other documents to the Tribunal. All of that material presented is retained on the Tribunal file and has been taken into consideration.

The locality was inspected by the Tribunal during the period between the two days of hearing, as well as subsequent to the hearing on a number of occasions, at different times of the day.

1. This is an application for review under s.79 of the Planning and Environment Act 1987 brought by the company listed as the Permit Applicant, being Brighton Beach Apartments Pty Ltd, to review the failure of the City of Bayside to grant a permit, or determine the planning permit application within the prescribed time, for seven residential dwellings and associated basement car parking on the property known as 1-3 Beach Road, Hampton.

2. Following the lodging of the application for review with the Tribunal on 24 July 2001, the City of Bayside considered a report of Council officers and at their meeting held 3 September 2001 determined to not support the application based on the following grounds:

1. The proposal constitutes an overdevelopment of the site.

2. The proposal provides inadequate opportunities for landscaping.

3. The proposal involves the removal of mature vegetation.

4. The proposed development will result in unreasonable visual bulk to the street.

5. The proposal involves construction over a Council carriageway easement shown on title.

6. The proposal is not consistent with the spirit and intent of the Good Design Guide.

3. The Tribunal received statements of grounds from a large number of the original 58 parties who lodged objections with the Responsible Authority to the grant of a permit, indicating that they wished to be party to the proceedings of the review application. Apart from those persons represented by either Mr David Robinson and/or Mr David Goodwin, a number of other Objectors made either written or oral submissions to the Tribunal during the course of the hearing. Mr and Mrs D Seator and Mr and Mrs Ian Henry attended the Tribunal hearing but did not make any presentations, wishing only to have their presence at the hearing noted.

4. There were a number of preliminary matters addressed at the commencement of the hearing. These included addressing whether there were any expert witnesses to be called, by either the Applicant for Review/Permit Applicant, or by Mr David Robinson. This question arose in correspondence received by the Tribunal prior to the hearing date regarding the circulation of a concept landscape plan and report prepared by Contour Design Pty Ltd for the Permit Applicant, as well as a brief report from Acoustic Consultants Watson Moss Growcott Acoustics Pty Ltd being circulated by Mr David Robinson on behalf of the Robinson family. It was established that no expert witnesses were to be called to present any evidence, although the circulated material would be tabled for consideration by the Tribunal.

5. Mr Bowden by letter dated 21 October 2001, advised the Tribunal and the Council and all Objectors, that the Permit Applicant proposed at the commencement of the hearing to seek leave to substitute for the application plans, a set of revised plans which he described as having minor variations and including the following:

* The basement ramp grades have been modified to comply with the Good Design Guide and the Australian Standard for

* The car parking layout within the basement has been revised to provide for landscaping along the Beach Road frontage of the site.

* The floor levels of Units 5 and 7 have been raised 450mm as a consequence of the revised ramp grades. No changes are proposed to the roof height of Unit 7 as the increased 450mm in floor levels can be absorbed within the proposed building envelope.

We propose to seek leave to amend the planning permit application to include a variation to the location of the existing carriageway easement affecting the land, to facilitate the proposed minor relocation of this facility.

6. In relation to the application made by Mr Bowden for the Tribunal to consent to the amendment of the permit application to include a variation to the carriageway easement, Ms Hicks for the Council stated that Council did not support building over the easement, and considered that material detriment may be caused due to the loss of indigenous vegetation to the south of the easement, and that Council did not support or consent to the amendment of the permit application.

7. Mr Goodwin submitted that the application to vary the easement should be widely advertised pursuant to the provisions of s.52 or s.60 of the Planning and Environment

Act 1987 (`P&E Act'). He tendered a `preliminary submission' relating to this matter submitting that the Tribunal should not agree to the variation requested, and that the proposal `to build over an existing public footpath' should be the subject of a separate application to VCAT or Council so that either VCAT or the Council could then direct the advertising it considers appropriate. He advised that his clients would have no objection to the hearing being continued provided that the public footpath was not proposed to be built upon. In support of his submissions he tendered photocopies of the decision of the Tribunal in Application for Review No. 1999/058268, in which he highlighted passages when that division of the Tribunal comprising Members Komesaroff and Hewett addressed the question of beneficiaries of a carriageway easement not being given notice of a planning permit application to vary the width of an easement.

8. Mr Robinson supported the arguments advanced by Mr Goodwin, and emphasised that the only way the general public could have found out about the prospect of a variation of the application to include a change in width of the carriageway easement, which he maintained and highlighted was in favour of the Council and the citizens of the municipality, was if they had enquired about the progress of the seven dwelling application. He quoted to me, s.187A of the Local Government Act in relation to a potential acquisition by the Council of an easement over a four metre wide section of land to the south of the carriageway easement.

9. In the face of the opposition referred to above by other parties, and in view of the concern expressed by me regarding the significance of the requested amendment of an application in this way, Mr Bowden withdrew his request, stating that a consequence of this was that a later request/application would need to be made and perhaps determined under another jurisdiction. In the event that after hearing the merits of the case, if the Tribunal was of a mind to order that a permit be issued, he would invite a condition on that permit that it would have no force or effect until the easement question had been settled and/or realigned.

10. With respect to the substitution of the circulated plans, there was no opposition to the substitution from Council or the Objectors, and accordingly pursuant to the provisions of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, I amended the permit application, substituting the revised plans as circulated which had been prepared by Tony Hampton Architects Pty Ltd dated 15 October 2001, comprising drawings labelled TP01, TP02 and TP03, all marked `Rev. A'.

11. The proposal involves seven dwellings being built on two levels above a basement within which car parking and storage is proposed to be provided with access being achieved by an access driveway and ramp towards the south of the site, adjacent to the proposed relocated three metre wide carriageway easement. Dwelling 1 is a two storey apartment containing two bedrooms on the upper floor, with the kitchen, laundry and living/dining rooms on the ground floor. Dwellings 2, 4 and 5 are all single storey, each providing two bedroom accommodation. Apartments 3, 6 and 7 are on the first floor and also provide two bedrooms in each of those dwellings. All access to the development is directly off Beach Road, and there are various terraces and balconies being provided, in a fashion which Mr Bowden claimed provided adequate private open space for each of the dwellings.

12. The streetscape appearance and the design concept involves colourbond tray decks, either curved or pitched 2% or 6%, as well as a variety of different wall materials and colours which are detailed on Drawing TP03.

13. Setbacks of the ground floor and first floor vary along Beach Road from 3 metres to 7.6 metres and parts of the buildings are effectively built to the rear boundary which adjoins land used for the Sandringham railway line.

14. The revised and substituted plans provided 14 car spaces in the basement, as well as seven storage areas. Five of the car spaces are tandem spaces, and there are two stairs leading from the basement to the ground floor and upper levels within the building. A lift-up door, remote controlled, is proposed to be provided within the basement approximately 9.5 metres in from Beach Road, where the access ramp narrows from 5.9 metres wide (capable of accommodating two cars), to a single ramp which is 3.6 metres wide.

15. I have visited the site on a number of occasions, and driven around the immediately surrounding locality including, in particular, an inspection of the houses along Holyrood Road which is on the eastern side of the Melbourne-Sandringham railway line between Hampton Street (to the east) and New Street (to the north), where most of the Objectors own properties and live. I also travelled along Beach Road to the north and south of the review site, to inspect a number of existing developments which were shown in a series of photographs tendered by Mr Bowden, which he argued were similar in concept as well as size to the subject proposal.

16. The site is irregular in shape with a frontage to Beach Road of 40.23 metres, a south-eastern boundary abutting the adjoining house at No. 4 Beach Road of 24.24 metres, and a rear (north-eastern boundary) curved boundary with an arc length of 42.32 metres intersecting with the north-western boundary which is only 11.16 metres and perpendicular to Beach Road. The site area was given by Council as a total of 697 square metres, and is described in two Certificates of Title being Volume 7905 Folios 073 and 074. The ground surface of the subject land is approximately level with a slight slope to the south-west. Across Beach Road is the foreshore reserve and the Hampton Beach.

17. A carriageway easement three metres wide encumbers the land, located four metres to the north-west and parallel to the south-eastern boundary of the common boundary with No. 4 Beach Road. The house on the adjoining property to the south is a double storey brick dwelling with a front setback of 7.6 metres. The subject land was previously used as a service station, but the site is currently vacant and is devoid of any trees or significant vegetation, excluding landscape vegetation to the south of the existing walkway which does not actually follow precisely the currently existing carriageway easement.

18. The site has uninterrupted views of the bay and its foreshore, and a number of existing crossovers lead from Beach Road onto the site, past a relatively wide nature strip. The site is located generally within an established residential area that has close by, a reasonably full range of recreational, service and community facilities.

19. Ms Hicks described in some detail in section 4 of the Council written submissions, a detailed history of the subject land and earlier land uses on it, which had been the subject of considerable discussion, debate, and negotiations involving the Council and former owners. She provided a copy of planning permit No. S1235 (issued by the City of Sandringham pursuant to the Melbourne Metropolitan Planning Scheme on 12 December 1983) authorising the construction of a petrol filling station and buildings and works, and use of the land for a limited life petrol filling station in accordance with accompanying plans (which unfortunately could not be provided by Ms Hicks from Council records). The permit was subject to 23 conditions including Conditions 1, 2, 3 and 4 which proved to be particularly relevant to the matters argued before me in this review.

20. Condition 2 in particular provided the following:

2. Prior to the commencement of the use plans and documents shall be submitted for Council approval detailing an easement of carriageway shall be created over the southern 7m. of the subject site in favour of those parties with access rights over the existing Right of Way and a formal agreement with VicRail guaranteeing permanent rights of pedestrian access to Holyrood Street from the relocated pedestrian crossing.

3. A sealed undertaking shall be submitted to Council prior to the commencement of buildings and works that the applicant would have no objection to the reservation of the land at the expiration of this permit for the purpose of `Public Open Space'.

22. Finally, Condition 4 stipulated a life for Planning Permit S1235 in the following terms:

4. Pursuant to S.18(7) and 18(8) of the Town and Country Planning Act this permit shall be limited in life to a period of 20 years from the date hereof and at the expiration of such period all buildings and works related to the petrol filling station occupation of the site shall be removed at the expense of the occupier.

23. Condition 23 on the permit related also to the `pedestrian railway crossing and Rights of Ways' in the following terms:

23. Prior to the commencement of other buildings and works under this permit the pedestrian railway crossing and Rights of Ways with associated screen walls and plantings shall be created on title, relocated and constructed to the satisfaction of the Responsible Authority.

24. From an inspection of the two relevant Certificates of Title, an easement three metres wide only (not seven metres wide in satisfaction of the planning permit Condition 2) was registered in Dealing M197106Y at the Land Titles Office on 24 March 1986, however no-one who appeared before me at the hearing was able to unambiguously demonstrate the reasons for the reduction in width and the alignment commencing four metres from the southern boundary.

25. I was advised that an option to purchase, between the then owner and the Council of the former City of Sandringham was entered into, as an extension of the planning permit Condition 3 referred to above. Once again unfortunately, the Responsible Authority was unable to provide a copy of that option agreement, however Mr Robinson did provide a photocopy of an agreement which is not dated, nor signed by the Council although it was excecuted by `Ditta (Service Station) Pty Ltd' who was apparently the registered proprietor of both titles in 1982 and was the party who applied to the Council for the planning permit for the purposes of conducting the business of a service station on the subject land in association with land leased from the Victorian Railways Board. This agreement to my inspection, provided that if Ditta went into liquidation, was wound up or ceased to use the land as a service station, upon service on Council of notice of intention to cease that use, Council could exercise the option and purchase the land for an amount determined by a proper valuation. Mr Robinson was also able to provide a very poor photocopy of several pages of a report presented by Council staff to a meeting of the town planning committee held 25 July 1983. This report in part, states as follows:

On 11th July 1983, the Council sealed a (sic) agreement for a (sic) option to purchase the land at 2-3 Beach St, Hampton for a park in 20 years time. The Railways have agreed to relocation of the crossing and lease of the eastern Holyrood Street land to the Council. Solo have reached agreement with the Railways for payment to them for the relocation of the crossing, and with all nearby southern residents to relinquish their title rights to the existing Right of Way and to ... proposed redevelopment.

[Tribunal note: ... some words unreadable on copy provided]

26. The committee recommendation was that the officer's report be received and their recommendation adopted, and this apparently occurred. It remains a mystery to me on the evidence available and presented by all parties, how it came to pass that only a three metre wide easement was created extending to a point seven metres from the southern boundary. Nevertheless, the legal position is that the application drawings now substituted in the application for permit under review, intrude into that easement so as to occupy it entirely from the Beach Road frontage for a depth of approximately 13.8 metres to a point where the southern boundary of the proposed new building is built perpendicular to the eastern boundary rather than parallel to the southern boundary.

27. In other words, the current Permit Applicant proposes to realign part of an existing easement encumbering the land, build an alternative path two metres wide within a realigned future carriageway easement to be created in lieu of the existing easement (and presumably in favour of the same parties who have rights over that existing easement). By reference to Certificate of Title Volume 7908 Folio 074, and Creation of Easement Document registered in Dealing M197106Y, the easement was created and granted to `the Mayor, Councillors and Citizens of the City of Sandringham full and free right and liberty to and for them their servants agents workmen at all times hereafter to use the land coloured brown and hatched on the plan annexed hereto and marked `A' being part of the land contained in Certificates of Title Volume 7908 Folio 073 and Volume 7908 Folio 074 as a pedestrian footway".

28. Further reference will be made to the matter of this easement later in these reasons, and the futility of ordering the issue of a conditional planning permit if the City of Bayside maintains their present position expressed to me by Ms Hicks, that they resist the building over the easement, and presumably will not provide the necessary consent as one of the beneficiaries with rights over the easement to a variation of its alignment in the manner shown on the plans now before me.

29. All parties agreed, that the land was zoned Residential 1, and that Clause 32.01 was relevant to the application. The land is also subject to Clause 43.02, Design and Development Overlay and Schedule 1 to that Overlay, which seeks to protect the foreshore environment and views from Port Phillip Bay, and ensure new development maintains a pedestrian scale along Beach Road by restricting development to a maximum of two storeys (not including basement garages). Beach Road in front of the site is within a Road Zone Category 1 (RDZ1) and VicRoads is therefore a referral authority.

30. In terms of other planning scheme provisions, I was also referred to the provisions found in Clauses 14, 16 and 19.03 of the SPPF, and to Clauses 21.02 and 21.05 of the LPPF. Other policies relevant in a local sense to which I was taken by Mr Bowden included `Assessment Criteria for Multi Unit Residential Development, Urban Character Study (Area E), and Amendment C2'.

31. Following receipt by Council of the application form and other documents on

12 February 2001, a request for further information was made on 19 February and further information received on 30 April. Three notices were erected on the land for a period of advertising of fourteen days, as well as notification being given to owners and occupiers of sites adjoining the property in accordance with the requirements of s.52 of the P&E Act. It is understood that around 58 objections were lodged with the Council, and Mr Bowden summarised the Objectors' main concerns in the following way:

* Detriment to streetscape and neighbourhood character.

* Overdevelopment of the site, visual bulk and height, inadequate open space, inadequate car parking.

32. Council received a letter from VicTrack advising they had no objection to the overall development, however four concerns were raised to be addressed by the Applicant and these were that:

(a) The following activities could not be carried out without the prior approval of VicTrack:

* discharge of drainage or effluent onto VicTrack land;

* excavation/construction on/near the common boundary with VicTrack land; and

(b) Prior to the commencement of the development, a Section 173 Agreement must be entered into with the Responsible Authority in which the owner covenants that any windows or openings proposed on the property boundary with VicTrack will be removed in the event of development occurring on the adjoining land. VicTrack requires that the agreement be registered on the title to the property pursuant to s.181 of the Planning and Environment Act 1987.

33. Following referral to VicRoads for comment, a letter was received by Council advising that VicRoads had no objection to the proposed development and use of the property, subject to one condition requiring the eastern edge of the crossover proposed to be the same as the western edge, ie splayed at 60 degrees.

ISSUES REQUIRING CONSIDERATION AND DETERMINATION

34. There are a number of philosophical and design issues requiring consideration in this matter and these have been extensively canvassed by both the Council and Objectors during the hearing but I do not intend to repeat what was said. These issues include (not in any order of importance) the following:

1. Consideration about the existing neighbourhood character and the level of respect given by the proposal, in terms of building height, setback, style and appearance.

2. The density, bearing in mind the unusual shape of the site and its proximity to the railway and a busy main road.

3. The presence of an existing public walkway, the encumbrance of a carriageway easement, the appropriate width, safety, aesthetics, potential loss of native or indigenous vegetation, and the maintenance of existing community rights and potential variation necessary.

4. The potential loss of existing views towards the water and foreshore of Port Phillip Bay by existing residents nearby.

5. The potential detriment to the amenity of the area by reason of graffiti being anticipated along the wall proposed to be built on the boundary abutting the railway land.

6. Level of compliance with elements of the Good Design Guide.

7. Traffic and parking issues including perceived effect on movement of vehicles and pedestrians in Beach Road and along the public footway.

8. Suitability of site for residential occupation due to potential contamination issues.

9. Impact of proposal on existing and future levels of noise being experienced on nearby properties, due to trains.

10. Consideration of draft conditions, their adequacy, necessity and potential additional conditions to modify design to achieve an outcome to satisfy both Council policies, as well as acceptable internal and external design principles.

35. Also as previously stated, consideration needs to be given to whether it would be appropriate at all to determine this application prior to the matter of the existing carriageway easement being varied so as to enable part of the currently encumbered land to be redeveloped.

36. Many of these issues are quite complex and I have needed to give considerable thought to many of them, and the competing submissions made by the parties in order to arrive at my final decision. In particular, I decided that it would be inappropriate to direct the issue of a permit with a condition, even if it was carefully worded, that enabled a development to proceed in the event that the Permit Applicant was successful in varying the alignment of the carriageway easement to the significant extent required.

37. I also found that there was a fundamental underlying conflict between the existing character of the neighbourhood, and the proposal as presented in terms of the proposed density, and general appearance and built form of the proposed building, its materials and the limited opportunities for landscaping due to the high site coverage and minimal setbacks.

38. I found that many of the arguments advanced by or for the Objectors, were irrelevant considerations, and others were insufficient to justify a refusal either on their own, or in conjunction with other considerations. The prospect of graffiti on a future wall should not affect the outcome of any application in my view, and in any event, I am satisfied that the design solution on the substituted plans is an acceptable response to this aspect.

39. I found that the potential increase in the level of noise reaching nearby properties, arising from the rebounding effect off the proposed buildings, was so marginal that it did not seriously influence my decision.

40. It is clear on the material presented, that the Council has abandoned the opportunity they reserved for themselves to purchase this land for open space, which would have pleased the Objectors and nearby residents. The Council decision in that respect is not a matter which is before this Tribunal.

41. The arguments advanced regarding the loss of views from a limited number of houses along Holyrood Road towards the foreshore and Port Phillip Bay were not compelling. I agree it will be an inevitable outcome of any redevelopment of the subject land. Whether the loss of such views is unreasonable, or acceptable, is a matter of balance. It is often stated by members of this Tribunal, that there is no right to a view, and views currently shared are a relevant consideration, however they cannot dictate by themselves rejection of validly prepared development schemes which take into account current policies and other controls embodied in planning schemes and codes.

42. The unusual dimensions of this site, and the proximity of significant levels of traffic, and the train line to the rear, certainly complicate the opportunities for a successful development to occur. While I appreciate the innovation and quality of the design in many ways, I nevertheless have concluded that it is an overdevelopment of the site, and that it is not sufficiently respectful of the current character of the immediate locality. I have reflected on the amount of private open space areas being provided on an overall basis and a per dwelling basis, and while I have little doubt that market forces would perhaps result in the project being quite successful, with sufficient people finding them adequate having particular regard to the proximity of the beach, foreshore reserve, and public open space areas within reasonable proximity, I found that the quality of the open space areas provided for private use by residents were rather limited within the site (especially for apartments 3, 6 and 7), and this was a material factor in my decision that a permit should not be granted on the basis of this application.

43. I have little doubt, that a multi dwelling development can be designed which reduces the number of dwellings, increasing the private open space areas, and that such a scheme will be generated in the future once the Applicant decides whether or not he wishes to pursue the variation of the alignment and width of the easement pursuant to the opportunities afforded in the relevant legislation.

44. In terms of the streetscape and neighbourhood character arguments, which were well articulated by Mr Bowden, I took into account my inspection of many of the other developments to which he directed to my attention and provided photographic evidence in his written submissions. I nevertheless found that the context within which these other higher density residential developments are situated, is significantly different to the subject site. It is accepted that they all front Beach Road, however adjoining buildings to them are quite different to those found in the subject site. Whereas Character Area E has significant frontages to Beach Road, and most of the residential stock is some distance from the beach, many of the examples given by Mr Bowden are located within Character Areas C, F and H. These developments nevertheless do exist, and will no doubt affect the emerging character of the beaches within the City of Bayside in years to come. Nevertheless, I have not been persuaded to agree that the subject site can accommodate the introduction of the proposed development without impacting on the public pathway to an unacceptable extent, and do not accept that the streetscape will not be significantly changed should redevelopment be permitted in the form proposed.

45. I gave serious consideration to attempting to develop a series of conditions requiring a scaling-down and amendments to the concept, including those draft conditions which were discussed at the hearing. While those draft conditions in my opinion are generally suitable and provide effective controls, they nevertheless are predicated on the prior modification of the current encumbrances on the title.

46. This permit application and my review do not address that question, and accordingly it would be in my opinion, premature and contrary to orderly and proper planning, to direct a planning permit be issued in this permit application based on the plans opinions and information presented to the hearing. The modified plans (Rev. B dated 12 November 2001) which were tabled during the second day of the hearing by Mr Bowden, appear to me to have further responded to the valid criticisms of earlier designs. They do not however, in my considered opinion, go far enough to create an appropriate built form response in the context of the neighbourhood character of the area, or in terms of density height and bulk, adjacent to the alternative or existing public thoroughfare, albeit built on private land.

47. For these reasons, I have determined to disallow the application and have ordered that no permit issue. Having determined this way, I have not needed to address several matters raised by parties in reaching this conclusion, namely the potential contamination of the site and other land (arising from previous use), or the suitability and need for a S.173 Agreement.

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