The order of the Tribunal is that the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

Ms Jennifer Bowdern, Solicitor, appeared on behalf of the Responsible Authority.

The following Respondent/Objectors each appeared on their own behalf:

Mr Chris Townshend, Barrister, appeared on behalf of the applicants for review and permit applicants. Mr Townshend called Mr Phillip Borelli, Town Planner and Mr John Patrick, Landscape Architect, as witnesses in support of his submissions.

1. This is an application to review the failure of the Responsible Authority to decide to grant a permit within the prescribed time in relation to a proposal for the construction of two two-storey dwellings on the subject land. The Responsible Authority ultimately decided that it would have issued a notice of refusal to grant a permit other than for the application for the following reasons:

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

2. The proposed setbacks are inadequate and will result in unreasonable visual bulk in the streetscape.

3. The proposed garages will dominate the frontage of the development.

4. The proposal will be detrimental to the streetscape and neighbourhood character.

5. The proposal will be detrimental to the amenity of the adjoining properties as a result of visual bulk."

2. At the commencement of the hearing Mr Townshend applied to amend the permit application by the substitution of amended plans as foreshadowed in the notice given in accordance with the provisions of the Tribunal's Practice Note. No party opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application. The parties at the hearing of the application for review made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

3. The subject land is a regular lot located on the south eastern corner of the intersection of Foote Street with Coral Street in Brighton. The following extract from Mr Borelli's submission describes the site and its locality:

"Currently, the property is occupied by a two storey detached house of brick construction with a tiled gable roof. There is a double garage/carport in the south-west corner of the property and this building is set back only 1.5 metres from the street.

To the east, the application site abuts a larger property (No. 68 Cole Street) occupied by a single storey detached house also with a pitched tile roof. This house is set back 8 metres from Cole Street and 2.9 metres from the application site. A paved driveway runs along the western side of the property, closest to the application site. Private open space is located within the front setback and in the south-west portion of the property. This dwelling also has windows to habitable rooms that face the application site.

To the south of the site is a child care centre set well back from the street. An outdoor playground occupies the part of the site that abuts the application site.

Immediately opposite the site (across Foote Street) is a two storey block of flats with a flat roof and a 3.8 metre setback to Foote Street. Other housing in the immediate area is predominately comprised of single dwellings of either one or two storeys.

Overall, the neighbourhood is characterized by wide streets featuring mature canopy trees in grassed nature strips. Architectural styles and house sizes vary considerably and there is evidence of ongoing residential redevelopment in the area having continued over a long period.

The site is conveniently served by a bus route along Drake Street and New Street and is reasonably close to Gardenvale Station. Unrestricted on-street parking is available on both sides of Foote Street and Cole Street."

4. The proposal is to construct two substantial two storey dwellings on the subject land. The main entry and the double car garage for each dwelling fronts onto Foote Street. A 2 metre high masonry fence is proposed on both street boundaries, with the Foote Street fence broken by wrought iron gates and panels at the dwelling entries, and openings in front of each of the garages. Dwelling 1 is set back between 6.55 and 8 metres from the Cole Street frontage, and this frontage setback area contains a swimming pool and is the principal private open space for dwelling 1. Both dwellings are set back approximately 3 metres from Foote Street. Dwelling 2 is set back 3.8 metres from the east boundary of the site at ground floor level, and between 4.5 and 5 metres from the east boundary of the site at first floor level.

5. Having considered the submissions, and carefully considered the plans of the proposal, including the site analysis plan and the design response plan, the Tribunal is satisfied there is one issue which is decisive in this application for review.

6. The decisive issue is the effect of the proposal, as a consequence of its visual impact, on the amenity of the rear garden of the dwelling at 68 Cole Street. The proposed dwellings are very substantial, the dwellings are connected at ground floor level and separated by 3.15 metres at first floor level. While the boundary setbacks comply with or exceed the techniques of the Good Design Guide, the Guide alerts the designer to the difficulty of appropriately designing two storey dwellings towards the rear of a lot where the dwelling can impinge on the backyard amenity of adjoining dwellings. I am of the view that there are a series of factors in this particular case which demonstrate the failure of the design to appropriately deal with this issue, they are:

* The proposed dwellings are very large, and the floor area of the dwellings at first floor level is very large;

* The floor to ceiling heights proposed and the inter floor space are quite generous, and contribute to the overall height of the building;

* The neo classical architectural style tends to emphasize rather than diminish the visual impact of the building;

* The layout of the dwelling, and the rear garden, of No. 68 Cole Street is such that its western boundary is its most sensitive interface.

7. The subject land is a corner site and therefore is in many respects ideally suited for a redevelopment like that proposed. Given that it is a corner site I think it may be reasonable to expect that some form of two storey development would be possible at the rear of that site. The scale and mass of any first floor elements of a dwelling at the rear would have to be substantially less than that proposed in this case.

8. I have not formed a concluded view in relation to the question of whether or not the proposal is respectful of the neighbourhood character of this locality. However, there are a number of characteristics of the design and the locality which suggest to me that the proposal may fail the neighbourhood character test. These factors are:

* There are parts of Brighton in which large neo classical dwellings are part of the overall character of the neighbourhood, however, such dwellings do not appear to be an important feature of the immediate environs of the site;

* The most dominant dwelling forms in the immediate neighbourhood appear to be Federation or Edwardian dwellings, or bungalows from the interwar period, the massing and articulation of such dwellings is very different to that of neo classical styles;

* While high front fences are a characteristic of the neighbourhood, the overall mass of the front fence proposed, more particularly to Cole Street, is greater than that which is perhaps typical;

* The solar orientation of the site does make the frontage setback to Cole Street, a good location for the principal private open space for dwelling 1 and the prevalence of high front fences in the locality might make the location of the principal private open space in this frontage setback acceptable, but the decision to incorporate a pool in this area, and extensive hard paving, is such that the visual impact of the landscaping within this frontage setback is very much less than that which is typical in the locality.

9. Other issues raised during the course of the hearing include, privacy impacts, noise, car parking and traffic. I am generally happy that these matters have been adequately resolved in the design, and they would not have formed a basis for refusal of the permit application in the absence of the issues discussed above.

10. It follows from the above reasons that I intend to uphold the decision of the Responsible Authority and direct that no permit be granted.