Construction of a two-storey dwelling, plus basement.

Application under Section 82 of the Planning and Environment Act 1987.

Cl. 32.01-3 (construction of a dwelling on a lot less than 300 square metres in R1Z).

The review site is located on the north-west side of Bayswater Road in Kensington. It has an area of 299.65 square metres and supports a single-storey weatherboard dwelling. Adjoining land is occupied by a two-storey block of flats and single dwellings. On the opposite side of Bayswater Road are a mix of single and two-storey dwellings, townhouse style development and multi level block of flats.

1. In January 2012, the Melbourne City Council determined to grant a planning permit for the construction of a dwelling on land at 4-6 Bayswater Road in Kensington. Mr Byard, an objector to the planning application, has applied to the Tribunal for a review of this decision. His reasons for doing so refer to matters of neighbourhood character, siting, landscaping and non-compliance with ResCode (Clause 54 of the Planning Scheme).
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided to set aside the Council's decision. My reasons follow.
3. The Municipal Strategic Statement (MSS) divides the municipality into a number of Local Areas. The vision for Kensington/Flemington[2] refers to accommodating a diverse residential community, and to maintaining and enhancing residential amenity and heritage characteristics. Development in the residentially zoned areas of Kensington should maintain the generally low scale nature of heritage streetscapes and buildings.
4. Policy addressing urban design for areas outside of the Capital City Zone is found at Clause 22.17. Objectives refer to the scale, siting, massing and bulk of development complementing its context; ensuring that the height of buildings relates to the prevailing pattern of height and scale; and reducing unacceptable bulk in new development.
5. The objective of Clause 54.02-1 (Neighbourhood Character) is:

To ensure that the design respects the existing neighbourhood character or contributes to a preferred neighbourhood character.

To ensure that the design responds to the features of the site and the surrounding area.

1. I agree with the Council's submission that Bayswater Road is a varied streetscape in terms of height, siting and style. There are examples of dwellings ranging from the Victorian period through to the latter part of the last century. These include traditional cottages, multi level blocks of walk-up flats and more recent infill 'townhouse' style development. Buildings are generally of a single or two-storey height, with some examples of three-storey flats also present within the immediate environs of the review site.
2. Variation in front setbacks is also evident, reflective of the diverse dwelling styles and periods of construction. Front setbacks to the north-east of the review site are particularly shallow. The immediately adjoining single-storey dwelling is set back 1.5 metres, with the two, two-storey attached dwellings further along being set back 2.0 metres. The building on the corner of Bayswater Road and Epsom Road is constructed to its Bayswater Road sideage. To the south-west of the review site is a two-storey block of flats that is set back 15.7 metres from the frontage. This setback area is used for car parking. Development on the opposite side of the street has setbacks in the order of 4.0 - 6.0 metres.
3. Mr Byard submitted that the proposed minimum 2.5 metre front setback is insufficient. In his view, this setback is not responsive to the site's context, in particular the prevailing heritage dwellings in the street. He stated that the setback should be a minimum of 3.5 metres to the ground floor, with the upper level setback increased from 4.0 metres to 8.0 - 10.0 metres. This submission was, in part, based on the existence of the substantial front setback of the adjoining flats. The Applicant's response to this submission referred to the pattern of setbacks in the wider streetscape, arguing that the setback of the flats is an anomaly. Support was also sought from the existence of shallow front setbacks to the north-east, on the approach to Epsom Road.
4. I agree with the Applicant that the 15.7 metre setback of the neighbouring flats is an anomaly. The prevailing front setbacks are notably less than this. As a result of my inspection, I am persuaded that the proposed front setback for both the ground floor and first floor levels is acceptable. I say this on the basis of the setbacks displayed by the developments to the north-east which range between 0m and 2.0 metres. When viewed within the context of these buildings, and acknowledging the anomalous nature of the flats' siting, I consider that the proposed setbacks will not result in the development appearing as a discordant element in the streetscape. Even at these setbacks, the development will have less prominence in the street than existing townhouses and flats in the immediate vicinity.
5. The architecture of the front portion of the proposed dwelling reflects the traditional forms and style of the period houses in the street. Its pitched roof (both hipped and gabled), regular proportions, horizontal window forms, weatherboard cladding and metal roof sheeting create a presentation that is sympathetic to the heritage character of the street. The rear portion is of a contemporary style and appearance, utilising geometric forms, flat roof, 'sycon matrix cladding', concrete tilt-up panels and vertical timber cladding. This part of the dwelling is set back a minimum of 8.0 metres, to 12.0 metres and more, from the frontage. While it will be visible, particularly from the west given the abuttal to a car parking area, it is adequately set back to not impact unreasonably on the streetscape. The front portion of the dwelling will have prominence in the building's presentation to the public realm.
6. Mr Byard also expressed concerns regarding the proposed south-western boundary wall. His objection to this wall is based on its non-compliance with Clause 54.04-2. As I understand it, Mr Byard's concern is not that the wall will have an adverse impact on the amenity of the adjoining land, as it abuts the car parking area of the flats, but that it is not in keeping with the neighbourhood character. The Applicant submitted that there are examples of boundary walls in the neighbourhood, and views of the wall would be partly screened by an existing tree on the adjoining land.
7. Clause 54.04-2 has a related Standard (A11) which, if complied with, would have this wall limited to an average height of 3.0 metres with no part exceeding 3.6 metres. As proposed, the wall has an average height of 4.375 metres and a maximum height of 4.55 metres. The objective of the Clause is to ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings. In determining whether this objective is met, consideration is to be given to nominated decision guidelines. Relevantly, these include the extent to which boundary walls are a part of the neighbourhood character; and the visual impact of the building when viewed from adjoining properties.
8. The boundary walls referred to by the Applicant are associated with garage structures. The height of these walls is notably less than that proposed here. The proposed wall is not in keeping with the character of the neighbourhood. Notwithstanding its setback from the frontage, its abuttal to an at-grade car parking area makes it visible in its entirety from the street. The existing tree may provide a screening effect, but no assessment has been undertaken to demonstrate its on-going viability, noting that the proposed basement is to be constructed proximate to this tree. A boundary wall of this height is not an acceptable response to the site's context. Walls of this nature are not an evident characteristic of the streetscape or wider neighbourhood.
9. The plans also show the proposed erection of concrete tilt-up panels on the side and rear boundaries. These are to range in height from 1.93 metres to 3.3 metres. I was advised that these are intended to function as fences and that the height is necessary to limit overlooking of adjoining land from the ground floor level and open space area of the dwelling. This overlooking arises from the provision of a basement that projects partly above the ground up to 1.35 metres. The height of these elements is excessive, and not in keeping with the character of this area where boundaries are typically defined by conventional timber paling fences. While I agree that a change of material would assist in reducing some of the visual impact, I am not persuaded that the proposed height is acceptable. The structures are at odds with the neighbourhood character and represent an unreasonable imposition on the adjoining properties.
10. In this respect, the difference in ground level between the review site and the adjoining land to the north-west (rear) means that the proposed 'fence' structure on the boundary will rise to a height of 5.1 metres above this property. In arguing that this is an acceptable outcome in this instance, the Applicant submitted that although the neighbouring property's secluded private open space area adjoins the review site, it is located beneath a verandah structure which is largely roofed with sheet metal and only has two areas that are fitted with transparent sheets. The remainder of the area comprises the setback of the dwelling from the boundaries.
11. Again, this boundary structure is an unreasonable imposition on this neighbouring land. It will present as a highly visible and dominant element which, from the drawings, appears to exceed the height of the neighbouring dwelling itself. The development has not responded satisfactorily to the difference in levels with the adjoining site.
12. The basement occupies approximately 89% of the site. This significantly limits the ability to provide planting throughout the property. Meaningful landscaping should be considered for this development, given it is elevated above the ground by the projecting basement structure, which adds to its overall height and bulk. The basement layout also does not appear to have taken the mature peppercorn tree on the adjoining land to the south-west into account. The tree is located adjacent to the boundary and given the basement is either on the boundary or set back 1.0 metre, it may affect the health and viability of this tree.
13. My conclusion is that the proposal has not responded acceptably to its context, particularly at the rear. It comprises as substantial amount of built form, and in my view, represents an ambitious proposal for what is a modest site. It will be a dominant development that is out of keeping with the character of the area. I am not satisfied that it meets the policy objective of achieving development whose scale, siting, mass and bulk complements its context. I will set aside the Council's decision and direct that no permit is granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.