It is ordered that the decision of the Responsible Authority is set aside, and it is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.

For the Responsible Authority: Mr K O'Leary, Senior Planning Officer

For the Respondents/Objectors: Mr M Markowitz, Solicitor of Rigby Cooke

Lawyers, who called Mr I d'Oliveyra, Consultant Planner, as an expert witness

Permit Applicant: Mr D Vincent-Smith, Consultant Planner

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Bayside City Council ("the Responsible Authority") to refuse to grant a permit.

2. It is proposed that there be a cellar at basement level, at ground floor level a living room, family/meals room, bedroom, study, kitchen, laundry, bathroom and amenities. It is proposed that at first floor level there be three bedrooms, storage, bathroom and amenities. It is proposed that the dwelling be an attic style and have an area at ground floor level of 319.5 square metres (including the garage) and at first floor level an area of 120.8 square metres.

3. The northern wall would be on the north boundary, and a garage wall on the south boundary. The proposed dwelling would be one metre from the rear boundary of the existing dwelling to the east, and the garage would have a setback of 2.8 metres from the rear laneway. Vehicular access for the proposed dwelling would be from the laneway.

4. The subject land is on the west side of Stayner Street, and there is a laneway at the rear. It slopes downwards from east to west by approximately 2.0 metres. The subject land presently contains a double storey dwelling facing Stayner Street which is to be retained.

5. The dimensions of the subject land, which is irregular, are:

6. There is a tennis court and swimming at the rear of the existing dwelling in the location proposed for the new dwelling.

7. Mr Vincent-Smith, in his written submission for the Applicant for Review/Permit Applicant, described the surrounding development as follows:

"The surrounding land comprises a mix of double and single storey brick dwellings with tiled hip and gabled roof forms. Older development is generally well setback from the road and often well screened by existing vegetation or high front fences. Recent development of large two storey dwellings, with high site coverage, are now a highly visible part of the streetscape. Specifically, examples of this type of recent development include: two large double storey brick dwellings on the south eastern corner of Stayner and Reid Streets, two double storey rendered dwellings at 12 and 12A Burgess Street, six large double storey dwellings on the north western corner of Tramway Parade and Beach Road (425, 425A, 425B, 426, 426A and 426B Beach Road) and an elevated double storey multi-dwelling development, of substantial dwellings with garages under, at 427 Beach Road on the north-eastern corner of Tramway Parade and Beach Road (Refer to attachments - photographs).

The property to the North of the subject site (11 Stayner) contains a double storey brick dwelling with tiled roof. The dwelling extends across the width of the land, in a north-south format with habitable room windows facing west to capitalise on views of the bay. The dwelling is located on the eastern potion of the land, setback 7.2 from Stayner Street. Due to the size of the dwelling and shape of the building footprint, the dwelling is close to side boundaries. To the west of the dwelling is large area of private open space which is well screened by existing mature trees and shrubs along the side boundaries (Refer to attachments - photographs).

The property to the South of the subject site (Unit 3 of 7 Stayner Street) contains a single storey unit with a tiled roof, which is the rear most unit and ode of three units in this development. Vehicular access to this unit is provided at the rear via the right of way to garage. The unit contains a small area of private open space to the side (north) and rear (west).

Opposite the right of way, adjoining the western (rear) boundary of the subject site, are the rear boundaries of 8 Burgess Street (single storey brick dwelling with tiled roof) and 10 Burgess Street (a double storey brick residence with tiled roof). The rear boundaries of the dwellings at 8 and 10 Burgess Street are well screened with existing mature vegetation. 10 Burgess Street has a substantial garage at its rear boundary. 6 Burgess Street also has a substantial garage on its rear boundary and portion of a dwelling within 3 metres of the right of way (Refer to attachments - photographs). 12 and 12A Burgess Street are two recent substantial dwellings on small allotments. 12A Burgess Street only has vehicular access via the right of way to the east (Refer to attachments - photographs).

Opposite the subject site (east) are two double storey brick dwellings with tiled roofs known as 4A and 4B Stayner Street, and are arranged one behind the other so that the land of 4B is in the shape of a battle-axe."

8. The subject land is covered by the Bayside Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct a dwelling if there is at least one dwelling existing on the lot, pursuant to Clause 32.01-4. Clause 55, Two or more dwellings on a lot and residential buildings, applies to the proposal.

9. The subject land is covered by Schedule 1, Coastal Environs, to Clause 43.02, Design and Development Overlay. Clause 43.02-2 provides that a permit is required to construct a building or construct or carry out works, unless a Schedule specifically states that a permit is not required. Paragraph 2.0 of Schedule 1 provides that a permit is not required for a number of developments, including if the buildings and works do not exceed two storeys or 6.0 metres in overall height. A permit is not required pursuant to this Overlay.

10. Reference was to the following planning policies:

1. The proposed development will resulting unreasonable visual bulk to adjoining properties particularly to the residents of Burgess Street.

2. The proposal will resulting overlooking to neighbouring properties.

3. The proposed vehicle access arrangements for the dwelling are inappropriate and do not adequately cater for emergency vehicles.

4. Inadequate access is provided for construction vehicles.

5. The proposal will have an adverse impact on the neighbouring property to the south with regard to the location of the double garage.

6. The proposal does not satisfy the objectives of Clause 55 of the Bayside Planning Scheme.

1. Council Officers approved application but the Councillors did not.

13. Mr O'Leary, in his written submission for the Responsible Authority, made reference to the Bayside Urban Character Study and submitted:

"The description of the existing character of Character Area H has been provided earlier in this submission.

More specifically focussing on the subject land Council submits the following could be added. The properties along Stayner Street are a mix of single and double storey brick veneer dwellings on large lots (generally between 800 square metres and 1000 square metres) that are well setback from the frontage, with well landscaped front and side gardens. Access to dwellings is generally from Stayner Street.

The Urban Character policy describes the desired future character of Area H as follows:

"The area should retain the overall scale, building setbacks and garden development that is characteristic of the area through renovation of existing housing stock and through the development of new infill housing. The siting of new developments and extensions should reflect established boundary setback patterns and development within the setback areas, garden settings which reinforce both the character of the location and the relationship of private gardens to the street. High front fences and the use of front setbacks for vehicle storage purposes should be avoided."

Council contends that the proposed development does not respect the existing neighbourhood character of the area and that it does not contribute to the preferred future character, as specified in the Urban Character policy. It is therefore contrary to planning policy and fails to meet neighbourhood objective of Clause 55.

The proposed layout is not characteristic in the context of the pattern of development in the area. Developments in the area are generally large single dwellings or multi-dwelling development, but not second dwellings on 'battle-axe' lots. There are no developments in the area with new housing at the rear of the site, which are accessible from the street only by way of a long narrow pathway. Most developments have vehicular access to Stayner Street.

As a result Council contends that the proposal does not 'fit in' with characteristics of the surrounding area.

Council submits that the proposed double storey development is also undesirable as it would cause an unreasonable degree of visual bulk to the surrounding properties. The adjoining property to the north has no development at the rear while the adjoining property to the south has limited single storey development at the rear. In this context a dwelling with a first floor attic with a height of 6.0 metres and a setback from the lane of only 4.5 metres is considered unreasonably bulky. The proposed development will detract from the outlook and amenity of the rear private open space areas of the adjacent properties to the west of the site. Additionally, the proposal will have an adverse impact on the private courtyard of the neighbouring property to the south with regard to the location of the double garage."

14. Mr O'Leary also criticised the proposal for vehicular access from the laneway at the rear.

15. Mr Markowitz spoke to a written submission for Respondents/Objectors, and called Mr I d'Oliveyra, a Consultant Planner, as an expert witness. It was the evidence of d'Oliveyra that:

"The subject land is in an area which is characterised by its gently sloping topography, and predominance of large detached houses on large allotments, in established garden settings. Where multi-unit developments do exist in the area, they are designed to relate to the street, and to respect the character of front and rear setback corridors.

The current proposal is inconsistent with the established pattern of development in the area, and will result in a massive two-storey house being constructed at the rear of the land, with no proper sense of address.

The proposed development will seriously encroach on the outlook and amenity of the rear garden areas of the adjacent houses at no. 13 Stayner Street and nos. 8 and 10 Burgess Street, and of the private courtyard garden of the rear unit(no. 3) at no. 7 Stayner Street.

The proposed development will cause unacceptable overshadowing of the adjacent dwelling and associated north-facing courtyard garden to the south, at 3/7 Stayner Street.

The proposed house site is of insufficient size to accommodate a large two-storey dwelling designed for family living. The secluded open area of this dwelling is of inappropriate size, shape and orientation, having regard to the function which it will be expected to perform.

The proposed. development will severely encroach on the existing dwelling and diminish its amenity and liveability as a large family home.

The proposal fails to comply with the neighbourhood character planning policies in the State and local planning policy frameworks, and the Clause 55 "ResCode" provisions of the Bayside Planning Scheme. The proposal is also contrary to the objectives and provisions of the new urban character planning policies which are proposed to be included in the Planning Scheme in Amendment C2 (which is a seriously entertained planning Proposal).

In my opinion, the existing development on the subject land is purpose-designed to create a high quality suburban living environment for a growing family. It comprises a modem well-appointed dwelling of up to five bedrooms, and a variety of passive and active recreation spaces in a large garden setting. Most notable is the design concept of the dwelling and its siting on the land that emphasises a northerly aspect onto an attractively landscaped garden - which includes a secluded patio and swimming pool.

The arrangement of the existing development is not conducive to conversion of the land to dual occupancy use - simply by redeveloping (and destroying) the northern side garden and rear tennis court, to create a battleaxe-style development for a second dwelling.

The planning and design problems associated with the proposed redevelopment concept will be severely compounded by the fact that the second dwelling is to be almost as large and bulky as the existing dwelling, and will have an overall site coverage (effectively) of approximately 58% - which is far more intensive that the density of any other residential developments in the area.

The proposed two-storey dwelling is to be massive and bulky, even though the first floor level is to be incorporated in the roof space as an attic feature. In my opinion, the development will cause particularly serious amenity impacts on adjoining properties, in the following ways:

* The adjoining town house to the south and its associated north facing courtyard (which because of the layout of the development is the only secluded outdoor area for this dwelling) will suffer serious problems of overshadowing and daylight obstruction. The outlook of north-facing habitable rooms and the courtyard will also be seriously (and in my opinion irresponsibly) diminished, because of the close proximity of the new development to the common boundary (i.e. zero setback wall, the nearby high laundry wall, and the steeply pitched roof that will spring back from the boundary). There will be no opportunity for this harsh built-form interface to be relieved by soft landscaping.

The adjoining properties to the west - southwest will have an outlook towards a massive roof element and three picture-like dormer windows facing directly towards them. These windows will be less than nine metres from the adjacent gardens at numbers 8 and 10 Burgess Street, and as no screening treatments are proposed for them, they will cause significant privacy intrusions. As the incorporation of tall canopy trees in the intervening garden area of the proposed development would severely reduce the overall amenity of the narrow garden (by overshadowing) and is not proposed. the adjoining properties will be severely impacted by the visually bulky and oppressive built-form development to their immediate cast."

16. Mr Vincent-Smith, a Consultant Planner, spoke to a written submission for the Applicant for Review/Permit Applicant. Mr Vincent-Smith submitted:

"The subject site is located in Area H of the Bayside Urban Character Study. The study identifies that there the dominant characteristics are as follows:

* Predominantly 1960s and 1970s brick veneer and one and two storey contemporary infill housing;

* Roofs typically have high profiles (hipped or gabled) with eaves;

* Various building materials are used (typically red clinker, and cream brick or rendered materials) while terracotta or ceramic tiles are typical for the roof;

* Articulation of the facade via double or triple fronted form (usually contain verandahs);

* Low front fencing consistent with the architectural style of the building.

It is submitted that the proposed dwelling on balance is consistent with these characteristics in that it is a contemporary infill dwelling of constructed of brick and features a high profile tiled roof with eaves and substantial front garden and pedestrian access. The design was supported by Council's Urban Designer, who concluded that the proposal will have minimal visual intrusion to the street and the proposed dormer windows of the first floor attic add articulation and visual interest to the design.

Furthermore it is respectfully suggested, that new development in the immediate area demonstrates that this area is undergoing change and that the proposed development is also consistent with that change.

It is submitted that the proposal will reflect the desired future character in the following ways:

* The scale and massing of the proposal is consistent with the surrounding dwellings.

* The proposal is well setback from the street and avoids use of front setback for vehicle storage.

* The proposal retains large front garden characteristic for each of the dwellings, retains much of the existing vegetation and provides sufficient area for further screening planting within the front setback and within the private open space.

* The proposal incorporates sympathetic materials and forms, including brick and render, pitched roofs, tiles and eaves and articulation to the facade.

* The two dwellings reflect the detached character of the streetscape.

* The proposal softens the hard edge created by the existing 2 metre high brick fence by providing a 2.5 metre recessed entrance with portico to the pedestrian pathway.

* The proposal enables the larger and more significant trees on the block to be retained.

* The proposal is a sensitive design being single storey with a first floor attic and considering its setback behind the existing double storey dwelling. This form including side setbacks is in keeping with the more modem development in the street.

* The proposal reinforces the established 'rhythm' by proposing that the single crossover remain and only pedestrian access is available from Stayner Street to the proposed dwelling.

* Well designed and articulated dwelling, including a first floor attic with three Dormer windows, tiled pitched roof with eaves with a height that allows views from the existing dwelling to be retained;

* Retains existing crossover and minimal disturbance to the Stayner street frontage and established vegetation within the frontage;

* Utilises existing right of way to provide vehicle access and storage;

* First floor attic component riot bulky in neighbourhood setting, with overlooking minimised to a reasonable level through window location and direction;

* Dwelling elongated to make use of the wide nature of site and bulk of the dwelling located at ground to minimise overlooking and overshadowing; and

The design achieves adequate on-site parking, open space for the proposed and existing dwelling and the proposed dwelling is of a size and form appropriate to this location.

The design has been conceived through extensive consultation with council planning staff and windows orientated to prevent overlooking into directly adjoining land and to reduce the visual bulk of the development.

We therefore submit to the Tribunal that the design proposed has considered the parameters identified as appropriate in the re-development of this site and provides a response using accepted principles of architecture and design."

17. Mr Vincent-Smith responded to the Grounds of Refusal. He submitted:

"The proposal is in keeping with the scale and massing of the surrounding dwellings, particularly recent development. The dwelling retains the detached character of dwellings in the street and is well articulated through the use of a first floor attic to soften the double storey form. The 2 metre high fence along the right of way also softens the built form. The dwelling is adequately setback from the right of way at the rear boundary to provide ample room for landscaping in the rear setback and enhance the buffer between the proposed dwelling and the existing dwellings on the opposite side of the right of way. An existing buffer is provided to the directly opposite dwellings (west of the subject site) 8 and 10 Burgess, by distance, the 3.7 metre wide right of way, an effective vegetation screen from existing mature vegetation and a substantial garage at 10 Burgess Street on the boundary with right of way. (Refer to site analysis plan).

Furthermore, substantial structures within close proximity to the right of way, including double storey form are a characteristic of this locality. Examples of such development include the double storey weatherboard dwelling at 4 Burgess Street (opposite/south west subject site), which extends the double storey form to the right of way on its rear boundary. 6 Burgess Street also has substantial garage and portion of dwelling along the width of the site and within 3 metres of the right of way. (refer to attachment - photographs).

In response to the adjoining properties to the North and South, 11 and 7 Stayner Street respectively, the proposed dwelling incorporates an attic style first floor to a maximum height of 6 metres. The dwelling is recessive in nature incorporating a pitched roof facing away from the adjoining properties to the North and South.

In light of the above reasons it is submitted that the proposed development will not result in unreasonable visual bulk to the adjoining properties.

Council's officers report concluded in a similar manner where it stated that "the [proposed] dwelling and garage will not be visually intrusive to the adjoining dwellings ... as the dwelling and garage will only be built on the boundaries for a length of 10 metres and 6.2 metres respectively"

Overlooking concerns to neighbouring properties are minimal. The proposal is designed so the north and south elevations contain no windows in the first floor attic. Furthermore, the ground floor contains no windows on the north elevation in anticipation of this objection. There are no overlooking concerns from the ground floor windows. However, the existing fences along the common boundaries and along the right of way and the proposed vegetation will provide additional screening.

Vehicle access to the proposed dwelling is via a 3.7 metre wide right of way at the rear (west) of the site. A footpath and mature garden along the northern boundary provide pedestrian access to the proposed dwelling from Stayner Street to the east. This portion of the land is being between 3.8 and 5 metres wide, is a sufficient width to allow vehicle access from Stayner Street. However, the proposal was carefully designed to minimise the impact on the streetscape and limit vegetation removal in the existing established garden.

The total area of the land is 960 square metres. The combined ground floor area of the proposed and existing dwelling at ground level (including garages and cellar) is 392.29 square metres. This equates to an overall site coverage of 40.86%, which comfortably complies with the requirement for less than 60% under Clause 55 of the planning scheme. The site for the new dwelling has an area of 510 square metres and the proposed ground floor area (including garage and cellar) is 196.94 square metres or 38.61 % site coverage. The existing dwelling is on 450 square metres and the site coverage is 43.41%. Furthermore, the proposal provides off street parking (in addition to garages) and provides generous areas of private open space for each dwelling, well in excess of the minimum requirement under Rescode. Therefore, the development i6 not an over-development of the site.

Council's Officer's report confirms that the proposal is not an over-development (Refer to Appendix 6 of this Council Officer's report), despite their ultra conservative calculation of site coverage calculating the site coverage to be 53.5%.

As mentioned previously, this locality consists of a mix of double and single storey brick and weatherboard dwellings with tiled hip or gabled roofs. The development incorporates sympathetic materials and roof form, including brick, high profile pitched roof, tiles and eaves and articulation to the facade.

As noted in the Urban Character Study, new development is generally of a two storey form, reflecting the changing wishes of the community and the high land prices. The study notes that significant deviations from the established patterns of scale, form and mass of buildings is to be avoided. It is submitted that this proposal is not a significant deviation (if it is a deviation at all) given the generous setback, the strong separation between the buildings, the side setbacks, the articulation and the architectural elements used.

The Council officers agreed in their summation, by concluding that the development will sit comfortably in the street and will not detract from the existing streetscape and neighbourhood character. The proposed dwelling is a design that is respectful to surrounding development through the incorporation of architectural features common to the neighbourhood including face brickwork and a pitched roof broken up through the use of dormer windows for the first floor windows. It was also noted that Council's Urban Designer supported the proposal from an urban design perspective stating that the proposal will result in minimal visual intrusion to the street [and] the proposed dormer windows add articulation and an element of visual interest to the design."

18. Mr Vincent-Smith sought to rely on the Officer Report, whilst both Mr O'Leary and Mr Markowitz submitted that I should not have regard to the Officer Report. The Tribunal has held on many occasions that an Officer Report is relevant as one of the matters to be considered in making a decision. The Tribunal has also held that is the responsibility of the Responsible Authority or its delegate to make a decision as to whether a permit should be granted or not. I have had regard to the Officer's Report as one of the inputs in making a decision.

19. I have considered the submissions and evidence, the relevant planning provisions and relevant planning policies. I have come to the conclusion, for reasons discussed below that a permit should not be granted. The existing dwelling occupies a large portion of the subject land. Most of the subject land at the rear of the existing dwelling is presently used for a tennis court and swimming pool. It is proposed that both of these facilities be removed and the proposed dwelling occupy more or less the area presently occupied by the tennis court. Some of the proposed dwelling, the proposed open space and some of the access of Stayner Street to the proposed dwelling will occupy the area presently occupied by the swimming pool.

20. A relatively large dwelling is proposed to be located on a relatively small part of the subject land. It is often the case that retention of an existing dwelling is a significant constraint on the siting of an additional dwelling because inadequate area is available for location of that new dwelling. I consider that this is an example of such an outcome. It was the evidence of Mr d'Oliveyra that:

"In my opinion, the proposal is not for a site-responsive. Instead it is for a development which is to be shoe-horned onto the land, in a way which will severely compromise the amenity and integrity of the existing dwelling, create a heavily cramped setting for the additional dwelling, severely compromise the character of the open rear corridor which now exists between Stayner and Burgess Streets, and severely impacts on the amenity of surrounding properties in terms of visual intrusion, overlooking, and overshadowing."

21. I consider that this is a fair description of the proposal.

22. It might be that a smaller dwelling could be located on the subject land. I would envisage that such a dwelling would have appropriate setbacks to the north and south boundaries and the existing dwelling. An acceptable second dwelling would provide an appropriate standard amenity for its residents and not compromise the amenity enjoyed by residents of the existing dwelling or surrounding dwellings.

23. For the above reasons this application is disallowed. It is appropriate for a permit to be not to be granted, and I will so order.