Mr Anthony Hooper QC of Counsel, instructed by Ms Helen O'Connell, Solicitor of Wisewoulds. Mr Hooper QC called Mr Matt Ryan, Planning Consultant, and Mr Peter Harrison, Horticulturist, to give evidence.

1 Bayside City Council has suffered a spate of cavalier behaviour at 66 Cole Street, Brighton, 7 Tibbles Street, Beaumaris and now 9 Stayner Street Beaumaris, which has seen it approach the Minister for Planning for site specific planning scheme amendments, prohibiting development for more than one dwelling per lot[1]. The Minister has left it up to the Tribunal in each case.

2 At 66 Cole Street the developer built one double storey dwelling on the front portion of the site, after refusal of a dual occupancy comprising two substantial double storey dwellings connected at ground floor level across the block. Grounds for refusal of that first dual occupancy were uncharacteristic bulk and lack of landscape contribution in the front setback.

3 The developer then applied for a permit for a second double storey dwelling on the rear portion, with the front double storey dwelling a fait accompli. This was characterised as lawful behaviour but development by stealth. The developer was equally unsuccessful the second time round on review to the Tribunal[2], not having cured the deficiencies adjudged the first time round.

4 Naylor M's refusal was based upon inadequate 1.7m-2.8m physical separation between both large dwellings, minimal opportunity for landscaping to contribute to neighbourhood character for the front dwelling and inadequate diminution of the rear dwelling on the rear neighbour.

5 No. 7 Tibbles Street has seen the developer refused a dual occupancy at Tribunal level[3], then extend an existing single dwelling and convert same unlawfully into two dwellings using a party wall. Once again, the developer was equally unsuccessful the second time round on review to the Tribunal[4], the grounds of refusal being inadequate front setback, inadequate diminution of upper storey bulk, excessive hard paving in the front setback and detriment to a neighbour's amenity due to intrusive built form.

6 Community concern is that the Tribunal is faced with a fait accompli and thus forced to accede to a poor outcome, although the two above decisions, together with a sufficient number of others[5] prove this is not the case.

7 Ironically, the unlawful construction better enables an assessment to be made of the impact of approving the development[6].

8 The unlawful action however, may have implications as to the manner in which any discretion ought to be exercised[7]. The Hanzalik v Yarra Ranges SC set of cases concerned an enforcement application and a planning permit application for an underground house in a sensitive environmental location. In Hanzalik[8], the Tribunal ordered a road constructed without a survey to be realigned off neighbouring land and re-constructed on the subject land before any permission issued from the Tribunal. This was done to avoid any risk of trespass as well as ensure that access was feasible on the steep subject site, and was carried out by the permit applicant before any permission issued from the Tribunal. The same applied to stabilisation measures.

9 A preceding enforcement application against the applicant, issued by the responsible authority on 2 September 2005, has been adjourned pending the outcome of this planning review.

10 In 2003 in Brown v Bayside CC[9], Sharkey SM refused permission for two double storey dwellings on the subject land, also involving retention of the existing dwelling, but oriented differently across the block. The second dwelling was proposed mostly over the rear tennis court portion.

11 This review concerns council's refusal to permit two double storey dwellings on the subject land resulting from building alterations made to a building which received a single dwelling building permit No. 25996 from Combined Building Consultants on 1 October 2003.

12 That buildings permit was in turn for extensions to an existing house at 9 Stayner Street, Beaumaris, which saw the original dwelling extended in the north-east corner over the former swimming pool, together with alterations to the façade of the dwelling.

13 Without planning permission, Mr Kevin Raymond Brown converted the large single dwelling to two double storey dwellings by:

i

converting the office at the opposite end of the façade, opposite the original garage into a second double garage;

ii

converting the ground floor store to a laundry;

iii

deleting a wet bar;

iv

inserting a bedroom into the entertaining room which had been built over the former swimming pool;

v

closing up the thoroughfare between the original portion of the dwelling and the extension;

vi

inserting an elevated deck abutting the northern neighbour, Mrs Commerford;

vii

converting the upstairs master bedroom ensuite into a kitchen;

viii

converting the upstairs bedroom into a family room;

ix

inserting a first floor deck for the original dwelling between the original dwelling and the extension;

x

creating an enclosed balcony into the former first floor bedroom/now family room;

xi

creating a second driveway for the second dwelling.

14 Mr Brown's application is for development permission for two dwellings as well as a two lot subdivision.

15 The subject site measures 18.9m x 46.2m with a total area of 943m².

16 'Bigger is better' or 'big is beautiful' would have to be the up and coming catchcry in this immediate locality. The dwelling immediately next door to the subject land, Mrs Commerford's, is a large impressive white solid brick double storey dwelling of Mediterranean appearance with a high white painted solid brick fence extending across a frontage comprising two blocks of land.

17 Elsewhere in the vicinity large mansions are being constructed at the end of Stayner Street leading into Tramway Parade. Double storey elevated modern mansions are the order of the day with the views across to Port Phillip Bay. Although more modest dwellings still do exist in Stayner Street, the area is changing in character.

18 The subject building looks like an attached double storey dual occupancy with garages and driveways to each dwelling and a pre-existing high brick fence hiding an established canopy treed front garden, not too dissimilar to other dwellings in the immediate vicinity.

19 The pre-existing dwelling to the south, dwelling 1, contains five bedrooms, two family rooms, kitchen and three bathrooms plus laundry. The family rooms are also used for dining and bedrooms can be used as a study.

20 Dwelling 2 also enjoys a double garage, two living rooms at the ground floor and first floor level, two bedrooms, laundry, bathroom, powder room and a kitchen at the first floor level. A further room described as a 'gallery' is on the first floor. Dwelling 2 also enjoys a basement cellar, in the former swimming pool.

21 Both dwellings boast rear first floor verandahs which overlook each other's proposed secluded private open space, neighbours on the other side of the rear right of way, and obtain magnificent views out to Port Phillip Bay.

22 The original house at 9 Stayner Street enjoyed a rear tennis court across the entire width of the land, creating a hard-surface, unvegetated expanse, in contrast to its surrounding neighbours. It is proposed to convert this tennis court into two side-by-side gardens for the dual occupancy.

23 The land enjoys a Residential 1 zone, with Bayside's Schedule 1 clause 55 variation generating greater side setbacks than the normal ResCode provisions. The schedule to the Residential 1 zone was gazetted in Amendment C2 Part 2 on 18 March 2004. When this single dwelling received its building permit on 1 October 2003, the particular Schedule 1 clause 55 setbacks from the side and frontage, had not yet been gazetted.

24 Mr Brown has now converted his enlarged house into a dual occupancy without planning permission. Now that permission is required, Amendment C2 Part 2 Schedule 1 and Amendment C48 Preferred Neighbourhood Character apply to this medium density proposal.

25 On 30 March 2006 the Minister gazetted Amendment C48 to the Bayside Planning Scheme, introducing a preferred neighbourhood character over Precinct H4 within which this subject site sits.

26 Notwithstanding the policy behind this new neighbourhood character planning scheme amendment, the facts on the ground reveal a different character created by single detached dwellings which do not require planning permission and therefore need not take into account neighbourhood character or streetscape as part of the building surveyor's decision to grant a building permit.

27 Pursuant to the guidelines of Precinct H4, in order to maintain the rhythm of spatial, visual separation between buildings, dwellings should be sited to create the appearance of space between buildings and to accommodate substantial vegetation.

28 A Vegetation Protection Overlay Schedule 3 'Black Rock Native Vegetation Areas' covers the site and there is a Design and Development Overlay Schedule 1 Building Height Control to protect views from the foreshore to this bayside suburb.

29 The promotion of planting of indigenous coastal species is desired with removal of large established trees to be avoided. Pertaining to this site, one or two trees were removed for the second driveway, but the proposal involves the establishment of two gardens for the two dwellings which will dramatically increase the vegetation on the site, in contrast to the hard surface tennis court at the rear.

30 The proposal does generate a setback dominated by impervious surfaces created by the second driveway, but the previous view was to a very high front brick fence. Additional side landscaping has been planted along the new driveway.

31 The objective is to maintain the openness of the streetscape and views to coastal garden settings, and to that end high or solid front fencing should be avoided. However, the locality appears to be creating more high front fences for single dwellings that need no planning permission and it is clear that these recently gazetted preferred neighbourhood character guidelines do not reflect the facts on the ground in the specific vicinity of the subject site.

32 The impact of the illegal building works on this dual occupancy, assessed against the planning policies, is that, among other things:

i

the northern elevation of the new dwelling 2 is completely unarticulated generating a 24m extent of blank wall to the neighbour, Mrs Commerford, at 11 Stayner Street;

ii

the entries to each dwelling are dark and uninviting, located as they are behind garaging, under projecting decks and without adequate light entry;

iii

unattractive utilities such as hot water service and air conditioning plant and equipment have been attached to the northern façade of dwelling 2 creating an ugly outlook for the neighbour, Mrs Commerford;

iv

dwelling 1 is deprived of northern sunlight entry because of the area taken up by dwelling 2, and needs protection from overlooking;

v

northern sunlight entry for dwelling 2 in its 24m extent of blank northern façade has not been incorporated in the development, depriving it of energy efficiency. This cannot be cured because a new, attractive and substantial kitchen has been built along this northern wall;

vi

given the elevation of dwelling 2 and the close proximity of the first floor balconies to the rear gardens, significant overlooking will occur between each dwelling over the other's secluded private open space, until such time as canopy vegetation screens same.

33 The two advantages of this proposal is a horticultural assessment by Peter Harrison to plant a garden in place of the hard surface tennis court which covers the entire rear of the site, and the provision of accommodation for one more family unit.

34 The principal issues for consideration in respect of this application for review fall into two categories: the impact the illegal development of dual occupancy should have on my decision and the impact of the dual occupancy taking into account:

i

neighbourhood character and streetscape issues;

ii

landscape issues;

iii

impact on neighbours; and

iv

amenity for the occupants of both dwellings.

35 From a streetscape perspective the proposal appears in synchronisation with its immediate next door neighbour, Mrs Commerford, at 11 Stayner Street as well as quite a number of the other properties in both Stayner Street and Tramway Parade. Many of these Beaumaris dwellings generate high front fences, hard paved driveways, large bulky mansion-like dwellings and bold built form. Amendment C48 does not reflect the facts on the ground in this specific vicinity, so its non-compliance would not be a ground for my refusal of this proposal.

36 As far as the landscape objectives are concerned, Mr Peter Harrison, Horticulturist, has provided a detailed and well thought through analysis of the type of species that should be planted along the northern sideage and in the rear, western backyard. Council's expert landscape response is supportive with the exception of the substitution of bottlebrush for pittosporums. Having heard the evidence, I accept Mr Harrison's provision of pittosporums instead of bottlebrush, as they can be cut back and regrow more vigorously than bottlebrush.

37 Vegetation in the rear yard comprising coast wattle and lemon-scented tea tree have been suggested for their quick growing, coastal and screening qualities with a weeping lilly pilly 'waterhousia floribunda' suggested to prevent intra-looking between the open spaces of dwellings 1 and 2 from each one's respective balconies.

38 A landscape concept plan by Design 79 Sheet 1 of 1 illustrates the landscaping suggested by Mr Peter Harrison.

39 The developer agreed to amending the landscape concept plan by deletion of the notation 'a screen 2m in height (extending 1m above and 1m below) the tennis court cyclone wire fence consisting of Kevlar material' and substitution with the words 'trellis 1m atop the existing cyclone fence'.

40 The high quality landscaping over an otherwise hard surfaced tennis court is a strong factor favouring the grant of a permit.

41 In an attempt to appease the impact on Mrs Commerford of a 24m extent of blank unarticulated wall plus utilities along the northern first floor façade, Mr Brown illustrated on Drawing 8860 VCAT Ref No. 3195/2005 the insertion of articulation into the northern façade as well as the relocation of the hot water service and air conditioners relocated inside the roof.

42 A permit condition would ensure that the hot water service and air conditioners are relocated into the roof and are removed from the northern elevation and façade.

43 The articulation involves glass brick panels, translucent glass panels and highlight windows.

44 The concomitant problem is that an attractive new kitchen has been fully constructed along much of this northern wall, so it is impractical to insert translucent glass panels and highlight windows into this wall. Nor, given the adequate light entry from the west, is there any need to destroy this northern wall for the benefit of D2. But this does not solve the problem of a blank unarticulated wall facing Mrs Commerford - which only goes to prove that planning a two-dwelling development should be undertaken forwards, not backwards.

45 In addition to the relocation of the utilities and the insertion of highlight and translucent glass panel and glass brick windows into the northern façade, the sketch also shows the addition of Kevlar screens above the ground floor living rooms to dwelling 2. Given that this is their northern outlook, this could be detrimental to the light entry into this dwelling, but can be deleted.

46 The lodged plans for this dual occupancy show the addition of a wing-screen to the rear deck to dwelling 2 to screen views towards Mrs Commerford. The height of that screen needs to be specified on the plans.

47 Site inspection confirmed that the elevated staircase and landing leading from dwelling 2 to its secluded garden at the rear are within the 9m ResCode overlooking standard, and would also need to be screened to maintain Mrs Commerford's privacy.

48 All in all, although a large number of building modifications need to occur to protect the visual blight and loss of privacy occasioned to Mrs Commerford, this is achievable by permit conditions.

AMENITY FOR OCCUPANTS OF THE PROPOSED DWELLINGS

49 The most critical aspect of this review is the amenity for occupants of the two proposed dwellings.

50 In Loois v Bayside CC[10], Eccles M analysed the Tribunal's power to assess the dual occupancy proposal against the ResCode planning controls, notwithstanding its pre-existing impact on neighbourhood character as a single dwelling. Eccles M worked on the assumption that the single dwelling was lawfully constructed. He held, based upon Morris J's ruling in Jurkic No. 2[11]:

There are different and higher standards contained in all planning schemes which apply to proposals for an additional dwelling on a lot, notwithstanding that the building or part of the building which is proposed to become the second dwelling has already been constructed. I have therefore decided that I may validly consider in assessing the proposal the impact of the proposed front dwelling on the abutting property and on neighbourhood character and the streetscape.

51 In the same vein, I may validly consider the impact of the extension on the amenity of dwelling 1 occupants and vice versa.

52 My two site inspections confirmed that the modifications that need to be made to the building fabric to bring the two dwellings into compliance with ResCode are simply too extensive and too bandaid in nature to allow the proposal to go ahead.

53 The primary reasons are the extent of intra-looking between the two dwellings. This is a separate issue altogether from each dwelling's dark internal entries where it is essential for electric light to be switched on in the middle of the day. I will refer to Dwelling 1 as D1 and Dwelling 2 as D2.

54 Direct overlooking by D2's first floor staircase and landing windows:

i

forces D1 to lower its Venetian blinds in the kitchen from which it would otherwise draw northern sunlight entry, thus diminishing light entry during the day;

ii

deprives dwelling 1's ground level internal courtyard of privacy.

55 This could be cured by screening these windows with fixed obscure glazing to 1.7 metres above finished floor level to the first floor landing.

56 Direct overlooking by D2's internal courtyard into D1's kitchen and internal courtyard could be cured by requiring D2's courtyard to be screened by obscure glazing as already surrounds D1's first floor terrace. The existing thatch screen is easily removed, with opportunity for D2's occupants to impinge on D1.

57 The first floor terrace darkens D1's courtyard directly underneath it, but there is ample other ground floor open space to compensate.

58 D2's rear deck completely overlooks D1's secluded private open space to such an extent that it would take five to six years for the proposed landscaping to grow to somewhat screen those views. Rescode does not protect complete overlooking, just that views be limited. In the first three years, Mr Harrison's evidence was that there would be complete overlooking.

59 D2's elevated rear family room at ground floor level also overlooks D1's secluded open space, aside altogether from the overlooking caused by its upper level deck.

60 The overlooking by D1's first floor 'fifth bedroom' over D2's internal courtyard, if requiring screening, will diminish northern sunlight entry into this already small dark bedroom. Its light entry is diminished in any event by its very wide eaves.

61 Proposed Kevlar screens over the northern ground floor windows to provide articulation will only serve to diminish northern sunlight entry and should be deleted.

62 D1's rear deck completely overlooks D2's secluded private open space to such an extent that it would take five to six years for the proposed landscaping to grow to somewhat screen those views. Rescode does not protect complete overlooking, just that views be limited. In the first three years, Mr Harrison's evidence was that there would be complete overlooking.

63 D1's rear first floor balcony also completely overlooks D2's secluded private open space to such an extent that it would take five to six years for the proposed landscaping to grow to somewhat screen those views.

64 Mr Matt Ryan's evidence was that fixed slats to a height of 1.7m above finished floor level of the D1 balcony angled away from the rear private open space of D2 would preclude downward views to the private open space of D2.

65 Mr Ryan's evidence was also that a horizontal screen projecting two metres from the wall would effectively protect each dwelling's secluded private open space from intrusion, but again, this is a bandaid measure, out of keeping with the architecture of each dwelling, and yet another example of backwards, rather than forwards planning.

66 Because an attractive new first floor kitchen has been fully constructed along much of its northern wall, it is impractical to insert translucent glass panels and highlight windows into this wall. This fact retains the problem of a blank unarticulated wall facing Mrs Commerford - which only goes to prove that planning a two-dwelling development should be undertaken forwards, not backwards.

67 In the final analysis, there are too many bandaid measures such as wing walls, projecting screens, and faux articulation that need to be undertaken to retrospectively 'fix' this development. None of these are architecturally consistent with the building's design. It is my decision that, on balance and despite the two benefits of creating a garden and providing one more family dwelling, a permit not issue.

[1] Loois v Bayside CC [2005] VCAT 1645 at para 13, per Eccles M.

[2] Brown v Bayside CC [2005] VCAT 1775, per Naylor M

[3] Wilson v Bayside CC & Ors [2001] VCAT 612, Baird M

[4] Loois v Bayside CC [2005] VCAT 1645, Eccles M.

[5] Jurkic v Manningham CC [2005] VCAT 1162, Morris J; Zumpano v Banyule CC [2002] VCAT 912 (21 August 2002)

[6] Van Egmond v Knox CC (1985) 3 PABR 249; Knox CC v Tulcany PL [2004] VSC 375;

[7] Jurkic v Manningham CC [2005] VCAT 1162 @ 8 per Morris J (Jurkic No. 2)

[8] Hanzalik v Yarra Ranges SC (Enforcement Lower Piles) No.4 [2003] VCAT 2030 (17 July 2003)

[9] [2003] VCAT 213