11 At the hearing of this matter on 13 May 2005, I heard submissions from all parties, and I had the benefit of a written submission from the Applicant and Council. A copy of these written submissions is retained on the Tribunal file, along with the various photos, plans and materials tendered during the hearing.

12 During Mr Easton's submissions it became evident that there had been a drafting glitch with the application plans, in that the site plans showed the two central and the eastern proposed dwelling on the northern end of the subject land as each having one upper level north-facing bedroom window with clear glass, whereas the northern elevations in fact showed each of these northern dwellings as having no north-facing upper window apart from a small, opaque bathroom window. After some discussion, it was agreed by consent that I would use my broad powers under Schedule 1 to the VCAT Act to amend the proposal, to clarify the situation. In other words, I ordered that the application plans were deemed to be changed (as per Mr Easton's hand amendments) so that the northern elevation plans correctly show the two central and the eastern dwelling at the north end of the subject land as having a north-facing upper bedroom window with clear glass (as per the upper level site plan).

13 Since the hearing I have conducted a view of the subject land. This involved both walking over the length of the subject land, but also driving the length of Higgins Court and also driving around the other nearby residential streets.

14 I refer to the following useful description of the site and locality, taken from sections 2.1 and 2.2 of the Council written submission.

The site is within a recently developed estate in Bacchus marsh, where dwellings are generally contemporary style, single-storey and constructed in predominantly brick veneer, dating from the 1980's to more recent construction.

The battle-axe shaped parcel comprises a tin accessway with the balance of the lot setback approximately 50m south of Higgins Court. (See Figure 1 - Below)

The sites western boundary is approximately 70m long and abuts part of the rear portion of 19 Carey Crescent and the rear of the Bacchus Marsh Caravan Park fronting Main Street. The southern boundary is approximately 21m in length and also abut the rear of Bacchus Marsh Caravan Park fronting Main Street. The eastern boundary (in-part) abuts a water-retaining basin managed by Western Region Water Authority and is approximately 96m in length. This boundary also abuts the rear of Bacchus marsh Caravan Park fronting Main Street. The northern boundary comprises a 3m wide easement and is approximately 66m in length. It abuts the rear of properties at 22, 23 and 24 Higgins Court.

The land slopes significantly from Higgins Court culminating in a natural watercourse located approximately 46m south of the northern boundary easement, after which the land climbs slightly toward the rear boundary toward the Caravan Park. The land also falls approximately three metres from the west to east boundaries.

In a wider context the subject site is located approximately 1.25km north-west of the centre of Bacchus Marsh.

The subject site abuts eight properties in total. Six being residential properties to the northern, north-east, and part western boundaries. These each occupied by detached style single storey dwellings.

To the sites south is the Bacchus Marsh Caravan Park, which is, accessed via nearby Main Street, a principal western approach road into the town of Bacchus Marsh.

To the sites north, on the opposite side of Higgins Court are established brick veneer homes. These dwellings are predominantly single storey with titled roofing and set within established garden settings.

15 I have included below the Council summary of the proposal from section 2.3 of the Council written submission.

It is proposed to construct nine (9) two-storey dwellings on one allotment. Each of the dwellings proposed would be finished in face brickwork at ground level with a rendered finish to first floor and tiled roofing.

A frontage setback of 50 metres has been proposed to Higgins Court given the battle axe nature of the lot.

Each of the dwellings would have three bedrooms and is provided with an open kitchen, meals and family room with laundry/amenities at ground level.

The dwellings are to be accessed via a driveway located along the western boundary connecting with Higgins Court.

All dwellings are provided with a double garage. Each garage is provided with direct access to the adjoining private open space areas and also directly into the dwelling.

16 I refer to my comments above regarding the order which I made during Mr Easton's submissions, amending the proposal, so that it correctly showed the two central and the eastern proposed dwelling at the northern end of the subject land to have an upper north-facing clear bedroom window.

17 The subject land is zoned Residential 1. Although the subject land is also subject to a Vegetation Protection Overlay Schedule 2, it was common ground that as this Overlay has the aim of protecting mature river red gum trees (which are absent on the subject land), the Overlay has no real relevance to this appeal. Pursuant to Clause 32.01-4 a permit is required for the proposed nine dwellings on the subject land. Obviously the normal ResCode provisions apply here, being a nine dwelling proposal.

18 In relation to the State Planning Policy Framework, I was referred to Clauses 16.02 (Medium Density Housing) and Clause 19.03 (Design and Built Form).

19 With respect to local policies, Council mainly relied on Clause 21.07 (Managing urban growth and development). As one might expect, Clause 21.07 sets out a range of different planning objectives, some of which potentially conflict with one another (eg referring to the need to maintain "...the urban form and character of settlements", and the need for "high standard" residential development, but also acknowledging the need for a "diversity of choice" and a "physical limit to the area that towns can occupy".

20 Mr Easton also referred to Clause 21.03 of the Planning Scheme, although it is fair to say that most of his emphasis on the Planning Scheme was more on straight "ResCode" type issues.

21 I will not attempt to repeat the submissions of the parties (particularly as Council and Mr Easton both tabled written submissions, copies of which are held on the Tribunal file), but more focus on what I consider to be the key issues. In relation to the submissions by the neighbours, suffice to say that the key concerns expressed were the potential flooding of the low-lying section of the subject land, together with concerns about the northern row of new dwellings being too bulky, too high and thereby causing unacceptable amenity impacts for the existing Higgins Court dwellings. It was also put that having so many double storey dwellings was out of character with the primarily single-storey character of the existing Higgins Court dwellings, and traffic concerns were also raised.

22 I see the key issues in this appeal to be as follows:

•

The level of policy support for the proposal;

•

Whether the proposal is sufficiently respectful of neighbourhood character;

•

Whether there are sufficient drainage concerns to justify the refusal of the proposal, in relation to the low-lying part of the subject land; and

•

ResCode issues and the acceptability or otherwise of the interface between the proposed four double storey northern dwellings and the existing Higgins Court dwellings further to the north.

24 I am satisfied that there is adequate policy support for the proposal. While the subject land may be in the more rural setting here, the fact remains that it is zoned Residential 1, without any relevant Overlay constraints. The relevant local policies, while indicating that a variety of policy considerations need to be carefully taken into account, seem broadly consistent with the proposal, which will have urban consolidation benefits in taking advantage of a more generous sized parcel of land in a Residential 1 zone.

Is Proposal Sufficiently Respectful of Neighbourhood Character

25 The objectors in their submissions repeatedly expressed concerns about the proposal being unacceptably out of character with Higgins Court.

26 In response, Mr Easton submitted that I need to give weight to the fact that the subject land is (apart from the narrow driveway) set well back from Higgins Court, has a generous size, and the benefit of some of its abuttals involving less sensitive interfaces (eg having the water retaining basin to the east and the Bacchus Marsh Caravan Park to the south and east). He also highlighted the fact that there is an existing four-unit residential development a few lots further to the east along Higgins Court, together with there being a double storey single dwelling close by in Higgins Court and another multi-unit development (albeit a single storey one) nearby in Carey Grove.

27 On balance, I consider Mr Easton's submissions more persuasive and my finding is that, subject to my comments and concerns set out below regarding the interface between the proposed northern dwellings and the adjoining existing dwellings further to the north and the re-design issues I have raised, the proposal is acceptably respectful of the existing neighbourhood character.

28 I rely here on the following factors:

• While the position may well have been different if the proposal involved building four new double storey dwellings all facing directly on to Higgins Court, the reality here is that all nine proposed dwellings will sit behind the existing Higgins Court dwellings, accessible only by the narrow driveway. When combined with the fact that the land slopes downhill as one moves from Higgins Court towards the middle of the subject land, I agree with Mr Easton that the new dwellings can be expected to be barely visible from most angles as one moves along Higgins Court;

• Apart from the subject land being set back from Higgins Court, the subject land (at 3715 square metres in size) is much larger than the other conventionally sized residential lots in Higgins Court. Accordingly, it is reasonable to expect a much more intensive development of the subject land compared to the "one dwelling per lot" development that has occurred on most lots in Higgins Court, particularly given the benevolent interfaces with the drainage pond and caravan park adjoining uses;

• It cannot be said that two-storey development and unit development is unknown in the locality. In addition, it is a well known planning principle from previous Tribunal cases that the mere fact that proposed dwellings are double storey should not in itself automatically lead to the proposal being rejected due to the existing neighbourhood character being mainly single storey dwellings (particularly when the zoning is Residential 1 with no relevant Overlay controls).

29 Council and the neighbours raised concerns about the fact that about two-thirds of the way to the back of the site there is a low-lying area which has drainage/flooding issues. The thrust of these concerns was that the proposal should not be permitted while these drainage/flooding concerns remain unresolved. There was reliance here on photos of the subject land, showing this low-lying part of the subject land as being very green and grassy, despite the balance of the subject land being pretty dry. No one had any photos taken during the recent February 2005 record floods. During my view I did note that this low lying area is characterised by very thick and heavy grass cover, indicating a good water supply.

30 In response, Mr Easton put to me that:

• the design has carefully responded to these drainage issues by ensuring that the low-lying area of the lot will be used under the proposal as the back yards of the middle row of new dwellings, ensuring there will be no new built form over this low-lying area;

• there is no Overlay here expressly raising the drainage/flooding issues, with the implication being that Council and the neighbours were "beating up" the drainage issues unnecessarily. Mr Easton also relied on the fact that the local water authority (as the referral authority) had not raised any objections to the proposal;

• the appropriate way of dealing with these drainage/flooding issues was simply to ensure they are dealt with at a later stage, by way of an appropriate permit condition. In other words, he argued that there is a ready engineering solution to the situation, with the issue simply being the best way of dealing with the water run-off over the affected area so as to minimise any flooding effect in a major storm situation, and also if necessary being able to pump water uphill to Higgins Court.

31 Having considered these submissions, my findings are as follows:

•

I agree with Mr Easton that credit needs to be given for the fact that there is no Overlay control here raising drainage/flooding issues;

•

However I note that it was conceded by Mr Easton that there is a transition process going on, whereby the local water authority is effectively handing over control to Melbourne Water (with the local area now having the benefit of reticulated water from Melbourne). In this situation, I see a real possibility that the local water authority may not necessarily have thoroughly checked the proposal before approving same;

•

While I can see evidence of the design response having regard to the low-lying area, equally I do not necessarily share Mr Easton's view that the relevant drainage/flooding issues are automatically capable of having an engineering solution. I note here that Mr Easton did not call any hydraulic or engineering evidence at the hearing on these issues.

32 In light of my points set out above, I see the best way forward as being for the Applicant to be required to provide the Tribunal with a formal hydraulic/engineering report which deals with these uncertainties in terms of how the drainage/flooding issues associated with the subject land will be dealt with (ie confirming that a workable solution is achievable, and setting out how this can be done). This formal report must comply with the usual Practice Note requirements for expert witnesses. The other parties can have the chance to respond in writing, and the Tribunal can then in its discretion make a decision whether or not the opportunity for cross-examination should be given at the fresh hearing.

33 In relation to ResCode, other than the question of the northern interface and associated design issues which I have discussed below, I am satisfied that the proposal satisfies the objectives of ResCode.

34 While it is true that the south-facing back yards of the central and southern rows of dwellings is not ideal, this appears to be driven largely by the need to avoid built form development over the top of the low-lying part of the subject land. This seems a reasonable trade-off and hence these south-facing back yards do not in themselves pose a justification to refuse the proposal.

35 In relation to landscaping issues, I do see benefit in the Applicant having to produce a proper landscaping plan, if I am giving an Interim Decision and the Applicant is having to prepare other information anyway. As I indicated at the hearing, I would normally expect a nine dwelling proposal to include up front a proper proposed landscaping plan. In this case, the key issue seems for the landscaping to assist in the northern interface with the closest existing Higgins Court properties.

36 However, I make the point that it is difficult to see how landscaping issues could throw up such problems as to in itself justify a refusal.

37 In terms of each dwelling having its own sense of identity under Standard B26 and adequate open space under Standard B28, I see the proposal as an acceptable outcome. While it does not seem a major issue, if a permit issues, perhaps the Body Corporate could assist the situation by providing discreet directional signage, reinforcing the location of the different dwellings as one drives south down the main driveway.

Interface between Proposed Northern Dwellings and Existing Dwellings further North/Re-Design Issues

38 I now turn to the key issue in the whole appeal, being the interface between the four proposed dwellings on the north side of the subject land and the existing dwellings further again to the north. As mentioned, the situation here was complicated by drafting errors found during the hearing, although I am satisfied this was adequately resolved through the relevant orders I made at the time. I have also commented below on some re-design issues.

39 Starting with the "northern interface" issue, in simple terms, the Council and neighbours put to me that the four double-storey dwellings proposed at the northern end of the subject land will be too big, too high, too invasive of the privacy of the back yards of the existing dwellings further to the north, and generally too dominating. The three north-facing upper windows of the two central and the eastern new dwelling were criticised as an inappropriate design response, particularly as these windows (as proposed) have clear glass and no screening measures proposed.

40 In response, Mr Easton urged me to find that the distance between the upper level windows and the common boundary was so far (just over or under nine metres for three out of the four proposed northern dwellings) that overlooking was not a real problem here. In this regard, he also relied on the drop of about two metres in slope, as one moves down from the common boundary to the closest part of the new dwellings. He also relied on this "drop in height" factor in arguing that the two storey height of the four new dwellings is acceptable in the circumstances, putting to me that the visual bulk outcome would be further alleviated by the proposed new two metre fence along the common east-west boundary.

41 Having carefully considered the plans and conducted a view of the subject land, my findings here are as follows.

42 Before commenting on the four proposed dwellings on the north side of the subject land individually, I make the following general point. Apart from the four-unit development just further along Higgins Court (also on the south side of the street), nearly all dwellings in Higgins Court (and for that matter the other nearby streets) are detached dwellings. Attached dwellings of the type proposed here is a fairly foreign streetscape element. In this regard, the very fact that the proposal involves three rows of attached dwellings is in itself a fairly bold and intensive design approach.

43 I am less concerned about the "attached dwellings" approach in the central and southern row of dwelling, since these dwellings are more removed from the existing Higgins Court streetscape to the north, and will be hardly visible (if at all) from that streetscape. The central and southern row of proposed dwellings also have the benefit of benevolent interfaces with the other land uses to the west, south and east. Credit also should be given for the fact that the single storey garage element of the proposed units 5 to 9 will at least break up the upper level built form.

44 However, I am very concerned about the visual bulk outcome for the occupants of the existing Higgins Court properties further to the north, in relation to the four proposed dwellings on the north side of the subject land. These dwellings will present (when viewed from the north) as one long line of built form, at least at ground level. The drop in height across this part of the site will reduce but not eliminate this problem. While I appreciate there is at least some ground level articulation of the northern walls to provide more built form variation and interest when viewed from the north, the fact remains that there is no clear gaps or "voids" between the four proposed dwellings. I see this as causing major "visual bulk" issues in terms of the interface with the existing dwellings to the north.

45 Turning to my individual review of the four proposed northern dwellings, going from west to east:

• Proposed unit 1 in north-west corner - a key problem with unit 1 is that the closest upper bedroom (ie bedroom 1) is located only three metres from the northern boundary of the subject land, and is also fairly close to the backyard of the residential property to the east (ie on the other side of the driveway). The toilet and "top of stairwell" area is located somewhat further back at almost 5.5 metres from the northern boundary, but this is still substantially short of the upper level setback of 8-9 metres that features for units 2 to 4. I am also concerned that the proposed entry by vehicles into the double garage from the west seems likely to result in a potentially unsafe (or at least very inconvenient) situation of vehicles backing in and out of this garage into the main north-south driveway, thereby potentially blocking north-south driveway movement. This seems a very poor traffic engineering result.

Necessary re-design - combining my overall concerns about excessive visual bulk with proposed units 1-4 all being attached, together with the specific problems I see with unit 1, I consider that the Applicant should be given the opportunity to prepare and circulate amended plans, which must show unit 1 being deleted.

•

Proposed units 2, 3 and 4 - assuming unit 1 is deleted, the better way forward here seems for the proposed units 2, 3 and 4 to be re-designed, to each become a detached unit, with a more generous amount of open space. This seems a more appropriate outcome in terms of respecting the amenity of the existing neighbours to the north, and also creating a situation where these three northern units have a "transition role" in terms of the lower density, mostly detached and single storey housing to the north, compared to the double storey, attached housing (ie the other proposed units) to the south.

Necessary re-design- the Applicant should be given the opportunity to put forward a re-design of the three remaining northern units, which must make them each a detached dwelling, still with three bedrooms, two car parks and with the upper level built form set back from the northern boundary no less than 8 metres. It would be preferable if this re-design process could also result in an additional visitor car parking spot to directly service this north end of the whole site. In addition, in relation to the upper northern elevation of the three remaining units, my view is that each north-facing upper bedroom window should either have a sill height of 1700 mm or opaque glass up to that height. I also consider that there should be a demonstrated use of suitable materials and/or finishes to make these upper north-facing elevations less "slab-like" than they currently appear in the rather uninspiring northern elevations. Some suggestions here are a decorative "gable-end" type combination of decorative woodwork and rendering (rather than straight rendering, as is currently proposed), possibly combined with the slight setting-forward of the northern wall of each north-facing upper bedroom (ie slightly closer to the northern boundary) relative to the upper northern wall of the bathroom. In this regard, the re-design process should include the Applicant providing a Schedule of proposed Finishes for the dwellings, including colour samples.

•

Kitchen layout in most proposed units - I am surprised that, looking at the proposed ground floor layout of most of the proposed units, there seems to be a common theme of having a "L" shaped kitchen bench area, and a small wall extending out towards the nearest corner of the kitchen bench. This results in a rather "pokey" or small access area for a future occupant to move (possibly carrying food) from the kitchen (through this gap) into the meals area. Perhaps I am missing something here, but it is not obvious to me at all why there is this limited amount of access space to move from the kitchen into the meal areas.

Possible re-design - I consider the Applicant should be given the opportunity to either justify the reasons why it considers this limited access area between the kitchen and meals area of most units is appropriate, or otherwise to re-design the affected proposed dwellings to create a better internal movement situation. For example, with at least some of the proposed dwellings, the currently "L" shaped proposed kitchen benches could be converted to a straight bench plus an "island bench", allowing someone in the kitchen to move into the meals area from either side of the island bench.

•

Upper level of proposed unit 8 - looking at the proposed floor plan of the upper level of the new unit 8, the three bedroom configuration includes a "bedroom 2" that, when I scale it off, appears to be roughly 2.5 by 3 metres in size, with some of this space being needed for the "robe". This bedroom is noticeably smaller than the average size of other proposed bedrooms across the proposal. One wonders whether the area available (as currently proposed) more realistically lends itself to a study rather than a 3rd bedroom.

Possible re-design - I consider the Applicant should be given the opportunity to review the best use of the space currently shown as bedroom 2 in the proposed unit 8. Perhaps it might be possible to create some additional floor space for this proposed bedroom to the west or north, to make the bedroom less pokey. Otherwise, the Applicant might wish to re-consider the best use of this space. If the Applicant still wishes to put forward the use of this space "as is" as a bedroom, I will simply in my final decision reach a final view on same.

46 In summary, while I otherwise find the proposal to be acceptable, I have indicated in paragraphs 38 onwards some major concerns I have about the northern interface of the proposal, and some associated design issues and opportunities.

47 I note some traffic concerns were raised by the residents during the hearing - having heard the submissions and from my view, I consider that the local road network should be able to readily accommodate the increased vehicle traffic and I see no basis for refusing the proposal on this grounds.

48 In all the circumstances, rather than simply issuing a refusal, a fairer approach seems for the Applicant to be given the opportunity to put forward a re-design of the relevant features of the proposal, having regard to my comments above. Assuming the Applicant takes up this opportunity, I have also indicated that I require the Applicant to provide a proper landscaping plan, a suitable hydrological/engineering report addressing the relevant drainage/flooding issues, and a Schedule of Finishes.

49 My orders set out above allow the Applicant this opportunity to prepare and circulate this further information. If the Applicant does not take up this opportunity, I will instead be issuing a decision refusing the Application.