Checkpoint Holdings Pty Ltd v Moonee Valley [2001] VCAT 319 (28 February 2001)

Planning List; Moonee Valley Planning Scheme; Application for Review of refusal of permit; s.77 Planning and Environment Act 1987; detailed local policy; Good Design Guide; proposal for 10 units at head of cul de sac; steep site.

1. The responsible authority is directed not to grant a permit in application no. MV-11148 for the development of 10 dwellings at 46 Surrey Drive, Keilor East.

2. Mrs Ryle's application for costs arising from late filing of statements and circulation of revised plans by the Applicant is adjourned to a date to be fixed.

3. If Mrs Ryle intends to pursue this application, she must give written notice to the Tribunal and the Applicant within 21 days of the date of this Order, asking for a date for the hearing.

4. The Council is excused from any costs application.

Mr S Stewart of Minter Ellison, Lawyers, appeared on behalf of the responsible authority (Council) on the first hearing day, and was replaced by Mr S Jones of Counsel, instructed by Minter Ellison, on the second day.

Mr P Quinn of Philip Quinn & Associates, solicitors, appeared on behalf of Mrs J Ryle.

Mr K J Kelleher appeared on his own behalf on the first day.

Mr J Cicero of Best Hooper, Lawyers, appeared on behalf of the Applicant.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 (:the Act") for review of a decision of the Moonee Valley City Council ("the Council") as responsible authority under the Moonee Valley Planning Scheme refusing to issue a permit in application no. MV-11148.

2. The permit application was made by Checkpoint Holdings Pty Ltd, which is now the Applicant for Review. It sought a permit to construct ten double storey dwellings at 46 Surrey Drive, Keilor East ("the subject land"), in accordance with plans accompanying the application.

3. The subject land is located at the head of a long cul de sac which curves along the contour of the area lying between Buckley Street and Brees Road, Keilor East. Surrey Drive can be accessed from the north off Rosehill Parade via Rachelle Road or Brees Road and Medway Road, or from the south off Buckley Street via Rachelle Road, Stroner Road and Medway Road. There is no direct access from Buckley Street into Medway Road. Beyond the end of the cul de sac to the east is Steele Creek. To the north-east is a high voltage transmission line which crosses the creek valley. This land was shown upon production of a copy of the Planning Scheme map by Mr Quinn to be included in the Residential 1 zone, but subject to an easement (which I will assume to be for transmission purposes, as it is crossed by substantial above ground electricity supply towers and transmission lines), rather than being a public reserve. Steele Creek continues south into Avondale Heights and joins the Maribyrnong River.

4. The subject land, as one of the properties at the northern extremity of the cul de sac, is on the edge of the existing residential area, is separated from the creek environs by nos. 53 and 51 Surrey Drive, and from development to the north by the transmission easement .

5. Nos. 44, 46, 53 and 51 Surrey Drive all have narrow frontages to the head of the cul de sac, widening into a wedge shape. Collectively they form an oblong comprising the land between the creek reserve, the transmission easement, and the rear boundaries of the properties 67-75 Brees Road. A cadastral map of the area shows that these four lots are substantially larger in area than other lots forming the balance of the subdivisions in either Surrey Drive or Brees Road.

6. It can be seen from the street numbers that Surrey Drive has been numbered in the conventional way, with odd numbers on one side and even numbers on the other, instead of having continuous numbering around the cul de sac. At the head of the cul de sac, the two sets of numbers meet each other. The boundary between Mrs Ryle's property (no.53) and the subject land (no.46) is the point at which this occurs.

7. The Applicant did not file the statements of its expert witnesses until 10 July 2000, contrary to paragraph 4.2 of Planning List Practice Note no. 1. Furthermore, the Applicant served an extensive set of plans, which contained revisions, on the objectors late on Friday 7 July 2000. These plans did not reach the Tribunal file until 10 July 2000.

8. The application plans were drawn by Cassisi & Associates Pty Ltd, Architects, drawing reference nos 9826 TP 01 to 07, dated March 1999, amended 12/7/99 and 26/10/99; that is, they were amended twice before the Council made its decision which is recorded in the Notice of Refusal issued 17 February 2000.

9. Mr Cicero stated that he would not object to the presentation in evidence of revised reports of the objectors' witnesses, given the short time they had had to address the statements of his clients' witnesses.

10. These was argument as to whether the revisions to the plans were without prior notice, as Mr Cicero argued that they arose from the evidence of his client's traffic consultant, and a plan had previously been supplied to the Council and objectors illustrating the solution to an objection raised to the gradient of the driveway. The revised plans, he stated, illustrated the same solution. They did, however, provide more details as to the levels in the driveway, and at different points to the original plan. They also followed through with consequential changes to the levels of the garages.

11. Mr Cicero did not seek to amend the permit application so as to substitute the revised plans for the plans considered by Council. They were put forward as an illustration of a way to overcome a problem that had been discussed between his client's consultants and Council's engineers, as well as the objectors. He pointed out that the Council did not rely on any issue arising from the levels in the driveway and garages in its Notice of Refusal or in its submissions.

12. In the circumstances, those plans that were revised so as to show proposed alterations to the gradient in the driveway, and levels at the point of access between the driveway and garages or carports, are considered to be in the nature of evidentiary material accompanying the evidence of the relevant consultant, Mr Tucker. If Mr Tucker's solution were found to be satisfactory, the illustration contained in the plans would be helpful in formulating a suitable condition of permit to deal with the issue.

13. The parties have in fact done what was necessary to adapt their cases to the revised plans in the short period between receiving them and the commencement of the hearing. The hearing proceeded on the basis of the application plans being the set of plans considered by the Council, but with reference also to the changes proposed in the revised plans.

14. The set of plans provided on 10 July also contained copies of plans that had not been revised, but had not been filed by the Council as falling within the requirement of Planning List Practice Note no.2. These plans included a plan of survey, the site context plan and design response, and shadow diagrams. The plan of survey was drawn by Singleton Bahen Stansfield Pty Ltd, ref. 98268 version 02.The other plans were drawn by Cassisi & Associates Pty Ltd. There is no issue regarding the filing and service of these plans, which are helpful to complete the full picture of the information provided to the Council.

15. Some further illustrations for the purpose of particular issues were also included, such as a western elevation of the entire site, illustrating the fall of the land and extent of excavation, as well as the height of buildings above ground level, and an eastern elevation of Units 9 and 10. These are new plans by Cassisi & Associates Pty Ltd reference 8926 TP 11 dated 1/5/00 revised 5/7/00 and TP 12 dated 5/7/00. They are also regarded as illustrative of the evidence of the expert witnesses, rather than an matter for amendment. A landscape plan, by John Patrick Pty Ltd, included along with Mr Patrick's witness statement, was considered to be in the same position.

16. The Council required that notice of the permit application be given under Section 52 of the Act. A large number of objections were received. The Council refused the application on the following grounds:

1. The bulk and scale of the proposal is out of character with the surrounding area.

2. The proposal would adversely affect the residential amenity of adjoining properties.

3. The proposal is inconsistent with principles of orderly and proper planning.

4. The proposal fails to comply with the provisions of the Good Design Guide, in particular elements (sic).

17. It would appear that there was a transcription error in the last three words of ground 4 as set out in the Notice of Refusal. The text of the resolution is attached to the officer's report filed by the Council, which does not contain them. The Council did not rely on any specific elements of the Good Design Guide at the hearing, other than the element which deals with neighbourhood character.

18. The Applicant brought this Application on the following grounds:

2. The amenity of adjoining properties will not be adversely affected.

3. The proposal is consistent with orderly and proper planning.

4. The elements of the Good Design Guide are satisfied.

19. Mr Cicero, who appeared on behalf of the Applicant, relied on the evidence of Mr Zagami of E Zagami Pty Ltd, planning consultant, Mr G N N Tucker of GTA Consultants, transportation planning consultant, and Mr John Patrick of John Patrick Pty Ltd, landscape architect.

20. Some 29 objectors gave notice under Clause 56 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 that they intended to contest the Application. Among them were Mrs J Ryle and Mr K J Kelleher.

21. Mr Kelleher lives at 67 Brees Road, East Keilor. The properties on the south side of Brees Road, of which his is one, back onto the properties on the north side of Surrey Drive. Mr Kelleher's property does not back directly onto the subject land, but to a large vacant block (no.44 Surrey Drive) which is located next to the subject land at the head of the bowl court which ends Surrey Drive. His property is higher upslope than either the subject land or no.44, and he overlooks both of them.

22. Mr Kelleher gave notice that he intended to rely on the following grounds:

1. The bulk and scale of the proposal is out of character with the surrounding area.

2. The aesthetic appeal of the whole area would be lowered.

3. Properly values of the surrounding area would be sharply lowered.

4. Being told in 1975 that the area at our back would be open area, and this being reminiscent of our upbringing, we designed our home with living areas having outlook over the back of our block.

5. Traffic increase in Brees Road would be an inconsistent increase considering Moonee Valley Council's current proposal of road humps in Brees Road (their file 52/25/20).

23. Grounds 3 and 5 were not pursued at the hearing.

24. Mrs Ryle lives at 53 Surrey Drive, which is the property next to the subject land to the east, and downslope of the subject land. Her grounds were given in the form of what were in effect subject-matter headings:

25. Mrs Ryle, who was represented by Mr Quinn, relied on the evidence of two expert witnesses: Mr Joel Fredman BPD, BTRP (planning consultant) and James D Higgs, B E (Civil) C E.

26. Mrs Ryle was also authorised by a number of persons, some of whom had lodged and served Clause 56 notices, and some of whom were objectors to the permit application, to represent their views. An informal committee had been formed around her leadership.

27. At the hearing, of those persons who had given Clause 56 notices and were therefore parties to the proceeding, only Mrs Ryle and Mr Kelleher appeared.

28. I have had regard to the Clause 56 notices which have been lodged by the other objector parties, and to the fact that the proposal has been met with a good deal of local opposition. As Mr Cicero submitted, the weight that I can give to the views of persons who are not prepared to participate in the hearing as parties when they are entitled to do so must necessarily be less that that which should be afforded to persons who elect to take a full part in the proceeding. However, it is convenient to have the view of all persons entitled to participate, and who share a common view, presented by a single representative.

29. The issues will be determined not by the numbers of people who support or oppose the proposal, but by the weight of the evidence, and the application to the proposal of (among other things) the appropriate policies and assessment criteria.

30. The matters which the Tribunal must or may take into account in determining an Application for Review are set out in Section 84B of the Act. Section 84B(1) directs the Tribunal to take into account any relevant Planning Scheme. Clause 65 of the Planning Scheme sets out general decision guidelines.

31. The subject land is located in a Residential 1 zone under the Planning Scheme. In this zone, a permit is required under Clause 32.01-4 to construct two or more dwellings on a lot.

32. No overlay or other additional controls apply to the subject land. There are no Local Variations to the Good Design Guide.

33. The relevant purposes of the Residential 1 zone, set out in Clause 32.01, are:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households".

34. Clause 32.01-4 provides that before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate, the relevant State and local planning policies, and The Good Design Guide for Medium-Density Housing Revision No 2, Department of Infrastructure, April, 1998 ("the Good Design Guide").

35. The objectives and criteria of Element 3 of the Good Design Guide require that development:-

* makes a positive contribution to the character of the neighbourhood (E3.02);

* maintains the garden character of neighbourhoods (E3.03);

* incorporates trees with spreading crowns into developments (E3.04).

36. The parties all made reference to the relevant policies. What is in contention as regards policy is the weight to be given to the various policies, and their application to the facts of the case.

37. The State Planning Policy Framework ("SPPF") sets out general policies for planning in Victoria, with those relating to Settlement, Environment, Housing and Design and Built Form relevant to the consideration of this proposal. In Clause 14, "Settlement", the "General Implementation" clause for Metropolitan Development Policy (Clause 14.02-2) includes: "Consolidation of residential and employment activities is encouraged within existing urban areas and designated growth areas. Development in existing residential areas should be respectful of neighbourhood character".

38. The State Housing Policy for medium density housing has as its objective, in Clause 16.02-1:

"To encourage the development of well-designed medium-density housing which:

39. It is also State policy at Clause 16.02 of the Planning Scheme that responsible authorities use the Good Design Guide when considering applications for medium density housing.

40. The policy for Design and Built Form (Clause 19.03) encourages development that achieves architectural and urban design outcomes which make a positive contribution to neighbourhood character and enhances the public realm.

41. Clause 52.04 contains the requirements for "site analysis and design response for medium-density housing and residential buildings". The purpose of this Clause is:

"To ensure that a site analysis is prepared before a development is designed and that the site analysis influences the design of the development to provide good quality living environments and to respect, acknowledge and improve neighbourhood character."

42. The Municipal Strategic Statement deals with Residential Land Use at Clause 21.06. This reflects the two themes of an increasing diversity of household types which is not reflected in the types of housing available, and the need for infill residential development to be respectful of existing streetscapes and buildings of heritage significance. As regards the mismatch between housing and household types, the MSS states that:

"Over half of all households in Moonee Valley have only one or two people in them, while nearly 80% of dwellings have 3 - 4 bedrooms."

43. The Council's Residential Design Policy appears at Clause 22.06. This includes:

The City of Moonee Valley wishes to continue to be the leading residential location in Melbourne's northwest and aims to provide high quality residential neighbourhoods for future generations. Consequently, Council has developed a Residential Design Policy that will apply to all residential areas across the City.

The policy acknowledges that all streetscapes possess unique qualities that deserve recognition and careful design responses. More specifically, the policy will provide detailed principles and guidelines as to the objectives and desirable outcomes for residential development within the City. The principles and guidelines relate to issues such as architectural styles, dwelling setbacks, pattern of built form, building materials and landscaping.

44. The objectives which apply in all residential areas relevantly include:

* To maintain and enhance existing streetscape character for each suburb within the municipality.

* To discourage new developments that copy or mimic existing architectural styles particularly in or adjacent to heritage areas.

45. The local policy to achieve these objectives includes:

* Ensure that all multi dwelling developments must have regard to the local design policy relevant to each suburb within the municipality.

* Encourage applicants to consult with abutting properties or likely affected properties to ensure that the proposal has regard to local streetscape characteristics.

* Ensure all residential development is consistent with the Residential Design Policy.

46. The specific Design Policy for the Keilor East Residential area appears at Clause 22.06-4. Its policy basis includes a statement of "Development pressures and opportunities" as follows:

"The suburb is characterised by the presence of extensive areas of post 2nd World War housing, including housing stock from the 1950's to present day contemporary dwellings. Single storey detached dwellings predominate throughout the suburb, however new two storey dwellings and multi unit and dual occupancy developments are increasingly common. The relatively modest land prices, good road access and proximity to commercial uses will result in a gradual increase in pressure for multi unit development in the medium term."

"Keilor East has been largely affected by isolated residential infill, yet a significant amount of development has occurred on former schools sites. Presently, the suburb provides a significant stock of affordable modest family homes on large lots with substantial modest gardens. However the suburb is not generally well serviced by public transport with the exception of buses to Milleara Mall and Centreway Shopping centres. There is need to provide a greater diversity of housing opportunities, whilst recognising that there is still a strong demand for larger homes to accommodate families with children. The suburb is well suited to provide opportunities for increased re-development on vacant sites and on larger lots."

48. "Objectives" for the area are in the form of a statement of "the preferred future character for Keilor East". This is -

"......that of a suburb characterised by residential development that demonstrates consistent front setbacks with front gardens, low fences and off street parking or garages that are located behind the building line."

49. To achieve these objectives, it relevant policy is to:

* Recognise that there is moderate to significant additional infill development opportunities on vacant land and development sites.

* Maintain and enhance the residential streetscape quality and character.

To achieve this Council will (omitting irrelevant items):

* Ensure that residential development complements the existing streetscape character.

* Facilitate sensitive development of infill sites and vacant land.

* Encourage applicants to consult with abutting properties or likely affected properties to ensure that the proposal has regard to local streetscape characteristics.

* Ensure all residential development is consistent with the Residential Design Policy.

50. The subject land is within an area identified on the plan accompanying this policy as having "moderate infill potential".

51. Residential Principles for assessing or designing proposed residential developments, which are designed to assist in clarifying best practice for protecting streetscape character appear in Clause 22.06.17. These rely heavily on there being "predominant" shapes, forms and setbacks, and give examples of good and bad practice. An example of bad design is the construction of a building with its greatest bulk concentrated downhill over a valley towards the view. This is a feature particularly noticeable in the dwellings near the subject land on the "high side" of the road. An example of a "reduced bulk" alternative promoted by the Principles shows the building on two levels, with its two-level section cut into the side of the hill, reducing to single storey on the downhill side. This would leave a view at the upper level across the roof of the lower level, and avoids presenting two levels above natural ground level.

52. One of the strategies for Residential Land Use under Clause 21.06 is application of the Local Character Study. Mr Stewart tendered the relevant part ("Precinct 2") of the Local Character Study prepared by GHD Planning and John Curtis Pty Ltd and adopted by the Council in October 1997. This identifies some elements which can be recognised in the relevant area, such as the cul de sac formation common in more recent subdivisions.

53. The Local Character Study identifies the following features, which can be generally observed in Surrey Road: Off-street parking provided to every house, concrete kerb and footpaths and grass nature strips, with the position of the nature strip occasionally reversed, setbacks varying from 6 to 8 metres, and the variety of styles of garden are referred to, and the fact that properties without front fences are common. Street tree planting does not contribute significantly to streetscape or landscape character. Brick is the most common building material, of various colours. Houses are said to be "generally large to very large in those areas overlooking the Maribyrnong River". A style of development described in the part of Avondale Heights near the river appears to have been followed more recently in Surrey Road: two and three storey solid housing covering steeply undulating hillside.

54. The Local Character Study comments (under "Consistency and Coherence") that individual parts or subdivisions across East Keilor are highly consistent within themselves.

55. With respect to the objectives set out in the Local Character Study, I agree with Mr Stewart that this has been largely overtaken by the policy now appearing in the Planning Scheme. As usual, its objectives include avoiding high walls and fences, and locating garages within the front boundary setback; and infill development that respects the scale, form and proportion of the adjacent buildings is to be encouraged.

56. The parties supplemented their submissions and plans by photographs of the subject land and its surrounds, including views taken from across the creek reserve looking west at the rear of the dwellings on the lower side of Surrey Road. I was able to confirm the accuracy of the photographs by inspection.

57. The subject land is located at the end of the "uphill" side of Surrey Drive. Its frontage has an arc length of 14.26 metres, its rear boundary is 55 metres, its eastern boundary (shared with Mrs Ryle) is 80 metres, and its western boundary is 80 metres. It area is 2,837 sq.m. There is a scattering of mature trees on the subject land, but its nature is predominantly that it forms part of a steep grassy slope, with a good deal of exposed rock surface. Across the rear to the north is the power easement, across which a major electricity transmission line and its towers are highly visible.

58. To the west of the subject land is 44 Surrey Drive, which is also a vacant site, with an area in excess of 4,800 sq.m. The common boundary between the two vacant sites is not fenced, so that they are both seen as part of the grassy, stony hill at the end of Surrey Drive.

59. The Ryle property (53 Surrey Drive, to the east of the subject land) also has a larger area than the subject land, and is developed with a single detached dwelling. This dwelling presents as single storey to the street, although from across the valley it can be seen to be split level, as many of the houses in the area are. Its vehicular access is formed to make use of a double crossover that is shared with the subject land. There are four windows in the wall of the house facing towards the subject land, although windows, balconies and terraces have been primarily oriented towards the creek reserve and view across the valley. An outdoor terrace area has been laid out, using low stone retaining walls, in the private garden area nearest the subject land, immediately behind the house. A line of young trees has been planted to supplement more mature trees inside the common boundary of the Ryle property.

60. Because the subject land is on the transition where the "uphill" side of the road merges into the "downhill" side of the road, the Ryle property is located below as well as beside it. The fall from the north-west corner to the south-east corner across the subject land is about 15 metres. Levels taken on the Ryle property, below their western boundary retaining wall, are RL 22.65 and 22.86, compared to RL 24 and 26 on the actual boundary. The effect of the natural slope has been exaggerated by substantial excavation to obtain level areas for the house and terrace.

61. A stone retaining wall forms a "front fence" to the subject land, and continues on to retain the adjoining vacant land (no. 44). Existing access points and driveways indicate the entrances to the subject land and to no. 44.

62. On the other (western) side of the vacant site, at 42 Surrey Drive, is a three-level brown brick house, considerably elevated above street level. The lowest storey has no windows to the street, but contains a double garage at its eastern end. Above that and slightly set back behind it are two storeys with large bay windows and complex articulation. A gabled roof appears above the central portion and a smaller gable above the western wing. This very substantial structure is built relatively close to the eastern boundary of the property, where a paling fence has been erected at the ground level of the vacant site, ending abruptly with its foot at the top of the stone retaining wall which returns along the eastern boundary of no.42. The paling fence is at a height roughly equivalent to the second level of the house. Excavation for the house has left what it in effect a quarry face separated from the house only by a side path.

63. The street comprises what was described as a mix of single and double storey houses; but the incidence of split-level means that three levels on the downhill side of the slope are not uncommon. The houses are mostly of brick construction, and tend to be very large in both width and depth. There are two exceptions to the general pattern of one house on one lot - 51 Surrey Drive contains two dwellings, both of which are large and present a complex set of split levels to the eastern side. There is also a second house at 45 Surrey Drive, located almost directly behind the front house, and not very visible from Surrey Drive. Both these houses are very large.

64. The part of Surrey Drive in which the subject land is located is not fully developed. Apart from the vacant site already mentioned, there are other, smaller vacant sites and sites where construction is in progress. The formation of the road indicates that it started as a court which was later extended east and north, with the subject land at the extremity of the extended road. Mr Fredman, in his evidence, mentioned that this had occurred in the 1980s.

65. The existing houses are a mix of styles. The most immediately noticeable features are their orientation to make the most of the views across the valley (and in some cases towards the Maribyrnong valley, and perhaps even direct views to the city, which is plainly visible at some points in the area), and their generally large sizes. Some of the houses are of elegant, modern design. Others are "mock" styles ranging from Victorian to Tudor. There are a number of houses with rectangular lines. Except for the proposed detail of some semi-circular roofs, the proposed units would not introduce design elements in terms of shapes and styles, or number of storeys, that are not already established in the street.

66. Although there are some grassed nature strips on both sides of the street, they are not continuous, in that sometimes the footpath is inside the nature strip, and sometimes it is on the outside, and are also broken by wide crossovers. Tree planting in the extended part of the road reserve appears to have been minimal and optional. There are some specimens of deciduous exotics, and even palms. More may be intended to be done once the extended part of Surrey Drive is more fully developed. Power has not been undergrounded, and the power poles are tall and substantial.

67. Both the Council and Mr Fredman pointed to the distance which it was necessary to travel between the subject land and community facilities and infrastructure. Milleara Shopping Centre is a considerable distance to the west. There are bus routes along Buckley Street, at a distance of some 650 metres from the subject land, and the closest railway station is over 4 kilometres away. The subject land must therefore be seen as car-dependent, both as regards limitations on the people who could be accommodated in the proposed units, and with respect to adequate parking. The latter requires particular care in the case of a cul de sac site which is one of an arc forming several narrow frontages, as it cannot be assumed that there will be room on the street for overflow parking.

68. Next to 39 Surrey Road, there is a pedestrian path down into the creek reserve. It appears to be possible also to gain physical access to the easement under the power lines, which also connects to the creek reserve; but no information as to the attitude of the owner is available, and this cannot be assumed.

69. Entry to the subject land would be by the existing shared crossover on the eastern side of the property. Mrs Ryle's property shares this crossover. The design adopts the existing stone retaining walls on the frontage, curving beside the driveway. A further stone wall, set back about 6 metres, encloses an area which is thus formed into a raised terrace, about 1.5 metres above adjacent ground level at the frontage at the western end (RL 22.23), sloping back to RL 26.26 at its north-east corner, and also diminishing in height across the frontage towards the east, following the slope. Immediately adjacent to the western wall of the terrace is the driveway into the vacant site next door, which is cut into the slope and protected by the stone retaining wall on the subject land.

70. The elevated terrace creates a partial visual barrier to the development proposed behind it. The access road is proposed to proceed in a fairly straight line for more than 20 metres, so that the view into the site from the street would take in the full height of the southern part of Unit 1, a considerable amount of paving, and at least in the short term (until proposed landscaping matured) the southern end of the visitors' car parking area (4 spaces at right angles to the access road) which starts some 36 metres from the frontage

71. Units 1-6 are laid out along the western boundary, each with an individual driveway and landscaped area fronting to the access road. Unit 7 is tucked into the north-west corner, so that the rear part of the site forms a triangle. Unit 8 backs onto the transmission line easement, between Units 7 and 9. Unit 9 is in the north-east corner, with its long axis towards the Ryle property. Unit 10 is directly south of Unit 9, separated from it by a double "carport", and with its own single carport on its southern side, adjacent to the north end of the visitor parking area. From this point, the distance between the access road and the Ryle boundary is narrow, and is proposed to accommodate a limited amount of planting.

72. Units 1-8 are two storeys above basement parking. Units 1-6 require substantial excavation. Materials proposed include metal panels, rendered finish on masonry, coloured render on hardex sheeting, natural cedar finish, slimpanel garage doors, and colorbond metal roofs in flat, pitched and curved forms. Apart from the inclusion of some curved and pitched roof elements, the units are comprised of rectangular shapes, varied by small changes in setbacks. There are no eaves. Windows are minimal on the west elevation, and designed for east and north elevations to get the benefit of their orientation on the lower (living) floors, while the upper floors (bedrooms) are designed so that each bedroom has one small window, facing north, east and west (the master bedroom, with en suite bathroom) respectively. Other upper floor windows light the stairs and bathroom.

73. Although the built form elements pose no novelty in the street in terms of shape and style, the use of external metal panels, weatherboard and colorbond roofing is not consistent with existing development, as Mr Fredman pointed out.

74. Units 1-6 are based on the same ground plan, with some differentiation in elevational details. The double garage is partially excavated, although part of it is above ground with the living areas set back from its edge. Front stairs lead through the "front garden" landscaped area to a paved terrace comprising the greater part of the open space provided to each unit. The lower living floor comprises living and dining room (with direct access to the terrace), kitchen and laundry. Back stairs lead down to the rear of the unit, which is optimistically provided with a clothes line, but which will also have to accommodate the toe of the batter required for the excavation. The top level comprises three bedrooms and a bathroom.

75. Units 1-6 are connected to the extent that the garage of one unit abuts the terrace of the next. Units 7-10 are not connected to each other. They also show more variety of size and layout, perhaps reflecting the fact that they are independent dwellings arranged at different angles around the northern part of the access road.

76. Unit 7 has the most spacious living floor. It would have access from the living room to the northern terrace, and from the dining room to a south-facing terrace. Further double doors in the west wall of the living room would give access to a rear garden area with a northern orientation. The double garage would be advanced some 3 metres in front of the dwelling's eastern wall, which would be its "address" to the access road. Although the ground floor of the unit would be well articulated, as Mr Stewart's submission pointed out, there are points where the dwelling is only about a metre off the western boundary of the site. Although extensive excavation would be necessary for the rear part of the dwelling and much of the open space, the excavation would not be so deep in the case of Unit 7 as for Units 1-6, so that the open space would not be dominated by the batter. The bedroom level would have a northern deck onto which all three bedrooms opened.

77. Unit 8 is located to the north-west of Unit 9, so is of no particular concern to Mrs Ryle as regards proximity or privacy. It has no windows proposed in its south-eastern elevation. Windows are oriented to the north-east and south-west (front of unit, which also has a balcony at first floor level), with access from living and dining areas through sliding doors to a terrace on the north-west. The garage and ground floor are 2 metres off the site boundary at their nearest points.

78. Units 9 and 10, and their garages, are the parts of the development of most concern to Mrs Ryle. The garages are located within 2 metres of the common boundary. The dwellings are located within 3 metres of the boundary.

79. Unit 9 has the main windows of its living areas facing due west, although it does have a deck, accessed off the dining room, to take advantage of the eastern orientation and view. Mrs Ryle objects to this deck, on the ground that it would provide a direct view into her rear private open space, because of the difference in level. Screening devices on the balcony, or planting of mature trees on the eastern property boundary, were suggested by Mr Fredman as being necessary. The living area has only a small window facing north, although the room is on the north wall of the unit. On the upper (bedroom) floor, there are no windows facing east and one small window facing north. The windows are concentrated on the west wall. At a floor level some 1.5 metres above the floor level of the main living floor, there is a double "carport", which however shows as a garage on the elevation. Mr Cicero confirmed that this structure is a garage.

80. Unit 10 is the unit closest to the Ryle house, being located just to the north of the house and adjacent to the Ryle's terraced garden area. This unit is an exception in that although (like the other units) it has 3 bedrooms, it only has on-site space for one car, providing what is shown as a single "carport" on the layout plan, but with two solid walls, incorporation of the unit wall on its north side, and a garage door, on the elevations. There is a dotted line providing either a doorway or a simple gap at the north-east corner where the garage extends beyond the unit, by which access to the setback area could be provided. This unit is adjacent to the visitors' parking area.

81. The unit has a slightly tilted roof form, which adds to the articulation of the building without adding much to the overall height. The utility rooms and stairs are located on the east side of the unit, with living areas oriented away from the property boundary towards the north and west. A long, narrow opaque glass window is proposed in the east wall to give some daylight to the stairs. The impact of a kitchen window facing east is proposed to be limited by the placing of the kitchen benching so that view lines on a downward angle are restricted. A low screen/fence is proposed to terminate the eastern end of the terrace, some 3.5 metres west of the boundary. Any outlook from the southern side of the unit is screened by the garage wall.

82. Dimensions provided for the eastern elevation indicate that natural ground level is at RL 27.0, while the garage ground floor level would be at 28.62, the unit's ground floor level at 26.6, and the highest point at RL 34.6. Both storeys of the unit are elevated above natural ground level, so that the end of the terrace is well above ground level at the boundary, and the impact of the garage rear wall is magnified both by its elevation at the rear and its proximity to the boundary. Some articulation is provided at the southern end of the dwelling by an indentation of under 0.5 metre.

83. Although of concern to Mrs Ryle, Unit 10 is set back some 50 metres from the street frontage. The appearance of Unit 1 has the greatest significance as far as the streetscape is concerned. The Council submitted that a sheer wall of approximately 5.5 metres would be set back 8 metres from the frontage, with a circular roof form resulting in an overall height of some 11 metres above ground level at the frontage. The wall facing the street would be 8 metres wide. The garage would be on the side nearest the street, and would be above ground at a setback of about 5 metres from the frontage, with its ground level about 5 metres above ground level at the frontage.

84. Within the site, amended ground floor levels include Unit 1 at RL 27.6, and Unit 7 (which is at the highest point) at RL 35.4. The footpath level is RL 22.2. The slope of the hill nearer the street is slightly steeper than the more distant part, so that from street level with the existing elevated terrace, the upper part of the slope is not completely visible. Its full extent is highly visible as a distant view across the creek valley. This view also reveals the full extent of the existing housing on the "downhill" side of Brees Road, across the crest of the hill to the transmission line reserve. I note that a very large transmission tower is located at what must be almost the highest point of this hill.

85. This proposal therefore is "infill" of existing residential development already established on the higher slopes, as well as in terms of the subdivision around the end of Surrey Drive.

86. Mr Stewart relied on the Council policy regarding "character" issues. He further argued that although an assessment of the proposal on a "quantitative" basis would suggest that it met the elements, techniques and criteria of the Good Design Guide, it did not comply with the qualitative aspects of the Guide, and in particular, the expectation that it would promote good design.

87. The height and setback of the front unit (referred to above) were unacceptable. This unit does not "address" Surrey Drive, but turns side on away from it, which is inconsistent with the general pattern of development in the cul de sac. The bulk of development behind Unit 1, Mr Stewart submitted, would also be evident, due to the slope. The front unit cannot totally mask the units uphill to the north of it. He submitted that the topography made the dwellings very prominent.

88. The choice of multi-dwelling development had also imposed constraints arising from the need to excavate. Mr Stewart submitted that with so many dwellings on the site, provision of even minimal open space meant that building footprints had to be minimised, leading most units to incorporate underground garages, so that more excavation was needed. He pointed to the split level form common in the area as providing a better outcome, although it spread the building over a wider footprint.

89. The extent of excavation also, Mr Stewart submitted, affected the relevance of development density on the site. Although a density of 10 dwellings on a site of 2,837 sq.m. is well within the Good Design Guide "benchmark" density of 1:125 sq.m. for sites of over 750 sq.m. with a frontage of less than 17 metres, the necessity for excavation and battering reduces the usable area. I agree that this is not a case where the benchmark density is a useful guideline.

90. The slope and narrow frontage dictate a single access point. The internal access road, Mr Stewart pointed out, is relatively steep, and the individual lanes accessing the garages are also steep. The use of the accessway by the vehicles generated by 10 dwellings, under acceleration, would be greater than the impact of the steep driveway of a single dwelling. This would be a noise impact, which would be a matter of internal amenity, as well as a traffic movement impact. He suggested it would also tend towards onstreet parking.

91. The proposal to cluster dwellings which incorporate metal, colourbond and other "panels", being materials not forming part of the characteristic buildings of the area, in a prominent location, would in Mr Stewart's submission be inconsistent with the character of the neighbourhood. The high proportion of hard surface, with landscaping confined to the side boundaries and front retained area, are also inappropriate responses to neighbourhood character.

92. With respect to Units 8 and 9, he submitted that Unit 8 would have a wall height of about 9 metres within 2 metres of the north boundary, while the wall height of Unit 9 exceeded 6 metres with a setback to the eastern boundary of as little as 2 metres.

93. Adoption of a common form floor plan for Units 1-6, Mr Stewart submitted, showed that the design was not site responsive. The site's prominence enhanced the necessity of good design.

94. Regarding internal amenity, the most usable open space areas for Units 1-6, which were the paved areas, would be substantially overshadowed. The paved areas are located on the north side of each unit, and abut the southern wall of the garage of the next neighbouring unit, so that a garage wall of about 2 to 2.5 metres would form the northern outlook of each open space area. There is a variation in the relative heights of open space and garage walls as the units progress uphill.

95. Mr Stewart interpreted the shadow diagrams as showing that the open space areas to the north of each of these units be subject to a shadow impact that has passed across them and affects almost the whole by 3 pm.

96. Mr Stewart also queried the extent to which the shadows took the cut into account, having regard to the proximity of the rear walls of these units to the western boundary, where substantial excavation was proposed. Several of these units would be backed onto a cut that on the uphill side reached to the second floor level, with their kitchen windows facing into the excavated face. No impact of shadow from the cut is included in the shadow diagrams, although the open space areas would be well below the lip.

97. The 3 metre wide strip running along the rear of Units 1-6, in a deep excavation, is proposed to be landscaped in a manner that would step the batter but still leave room behind each unit for a canopy tree, shrubs and low ground cover. Mr Stewart submitted that it would become an alleyway with maintenance problems, rather than an attractively planted rear garden area.

98. Although relevant policy promotes urban consolidation, it does so in the context both of promoting efficient use of infrastructure and greater housing choice to accommodate the wider range of households who do not need or want the traditional form of housing with three or more bedrooms and a garden.

99. As regards urban consolidation policy, Mr Stewart made reference to the Niddrie Quarry site, which he submitted was the place designated in the policies where further development was encouraged. This site will accommodate some 350 households, and increase the availability and choice of housing in the municipality: Clause 21.15 of the Planning Scheme. Other opportunities have also been designated in the Planning Scheme through the "urban village" concept.

100. Nor do the proposed units promote housing choice, Mr Stewart submitted. Local policy reflects that 80% of dwellings in the area have 3-4 bedrooms. To add another 10 dwellings with 3 bedrooms does not aid diversity of accommodation, except with respect to the absence of gardens. If the proposal is to rely on diversity for support under the local policies, Mr Stewart submitted that it should have catered for those seeking a smaller alternative.

101. Mr Stewart also referred to the possible precedent for development of the larger site directly north-west of the subject land. I am not prepared to take into account the combined effect of similar development on both sites. This proposed development would limit options for the adjoining vacant land in a number of ways. Any future proposal for the adjoining site would have to be considered on its merits.

102. Mr Kelleher is a long-standing resident of Brees Road. He produced copies of some of the sales materials which had been current when he purchased his property in 1975. The area was developed as the "St Bernard's Estate", due to its proximity to St Bernard's College, which is located on the far side of the creek valley. Sales material referred to "unrestricted views", and houses (including his own) were designed to take advantage of that, with living areas having large windows facing east towards the creek. In his written submission, Mr Kelleher argued that by marketing the lots in the extended area of Surrey Road in 1987 as "ideal home sites", the owners had meant single dwelling sites. He objected to the loss of openness that would follow from units being "jammed up" against the western boundary, towards the Brees Road properties. He suggested that a single home would logically be built as far forward as practical.

103. Mr Kelleher's property backs onto 44 Surrey Road, close to its western boundary. The width of 44 Surrey Road is at its maximum between Mr Kelleher's property and the subject land, and must be in the order of 50 metres. I do not accept that the proposed development would have an unacceptable effect on Mr Kelleher's enjoyment of his property. His view of the development on the subject land would read as the upper parts of individual dwellings in a row on the other side of a back fence. Future development of the adjoining vacant site will in any event modify the view, whatever form such development may take. The dwellings would be just as much "homes" as single dwellings would be.

104. The transmission easement will ensure that the land under the easement will remain undeveloped for the foreseeable future, but it would be unreasonable to anticipate that land zoned residential, subdivided, and serviced by well developed roads and other infrastructure, would remain "open" for the purpose of protecting the views of higher owners. The slow rate of development of the large estate has fortuitously led to this area remaining undeveloped for many years, even though development was proceeding both above and beside it. The Planning Scheme makes provision for landscapes which have recognised value, and which are to be preserved, in that they can be made subject to overlay controls for that purpose. This is not such a case.

105. Mr Quinn called Mr Fredman, a planning consultant, to give evidence on behalf of Mrs Ryle. Mr Fredman indicated that he had also spoken to other objectors.

106. Mr Fredman had had little opportunity to study the revised plans by the first hearing day, but produced a supplementary report commenting on the differences between the plans as they stood when the Application for Review was lodged, and the revised plans. One revision in the plans related to the levels, which produced a greater difference in stated levels without altering the relative positions of the elements as illustrated on the plans. This resulted in adjustment to stairs between the garage level and the level of the front door being required, which he stated might encroach into the already limited open space areas.

107. The need for stairs, and the number of stairs, which the designs incorporated was a matter that Mr Fredman considered would fail to address the needs of people with limited mobility. Up to 18 steps needed to be negotiated to gain access to the "ground" floor of Units 1- 8. Unit 1 had its basement (garage) level more than 4 metres below ground floor level. Only Unit 10 had access at approximately natural ground level. I accept that the designs of these units make them unlikely to add to the choice of housing stock for ageing members of the community, who have either their own mobility needs or those of friends or relatives who would visit them to consider. The reliance of the designs on stairs means that the ageing population is a segment of the community for whom the policies require a greater diversity of housing, but who would not be well served by this development.

108. Mr Fredman also produced a table showing the difference between the levels of private open space of Units 1-5 and the wall heights of the adjoining dwellings (which are separated from the open space by the height and width of the above-ground portions of the garages). The table shows that the dwelling walls would vary from 6.3 to 7.2 metres in height above the open space. I accept that it is Units 1-5, not Unit 6, that are subject to the objection regarding quality of open space.

109. Mr Fredman verbally corrected a miscalculation in the maximum height above footpath level of Unit 1. The correct height would be 11.37 metres (which is consistent with the Council's submission), at a setback of about 8 metres from the frontage.

110. Mr Fredman supported the Council's submission that the retaining function necessary on the western boundary meant that the paved areas to the north of Units 1-6 were their main open space, with the rear yards adding little.

111. The role that the open space under the transmission lines at the rear of the subject land, and the creek reserve, could play as recreational space available to residents of the subject land was questioned by Mr Fredman. He was not aware of a direct connection to the creek reserve, nor of any right to use the "reserve" at the rear of the subject land. I confirmed the existence of a pedestrian link from Surrey Drive downhill to the creek reserve (as shown on the cadastral map, which may not have been provided to Mr Fredman) on inspection. This reserve, however, will only serve a limited range of recreational activities, as it is not laid out in gardens or developed for any type of sport in the immediate locality.

112. Other issues arising from the location of the subject land are its remoteness from shops and primary schools (more than 2 km away).

113. In answer to Mr Stewart, Mr Fredman defined the "neighbourhood" as including Medway and Brees Roads, as they were subdivided at the same time. He did not agree that the area from which views of the subject land could be obtained was the "broader neighbourhood". I consider he was right in resisting any implication that the visibility of the subject land from, say, across the creek valley should be considered as relevant to the policies and elements of the Good Design Guide dealing with neighbourhood character. He agreed that the proposal could impact on areas from which it can be viewed, which I agree is as far as this matter can be taken.

114. Mr Fredman further made reference to examples of houses with flat roofs and modern architecture in Surrey Road, explaining that he was concerned to identify predominant styles, but they were not universal. He compared the impact of a double garage and driveways in a wider frontage to the impact of widening the front drive in the narrow frontage of the subject land, commenting however that safe access was preferable to reducing the width for amenity reasons.

115. In answer to Mr Cicero, Mr Fredman agreed that Mrs Ryle's property had a driveway of at least 4 metres' width, that forked inside the front setback to form two driveways, and that there were no canopy trees in the front setback of her property, or anywhere on the east side of the head of the cul de sac. He also agreed that the height of Unit 1 would be comparable to the height of the existing dwelling at 42 Surrey Drive, although he found it difficult to compare the overall impact, because he did not have the ground level of the house, to compare to that of Unit 1. While he agreed that a garage as visible as that of no.42 was not the desired approach to design, he did not consider that it was prominent in the streetscape given the width of the frontage.

116. Mr Fredman accepted that existing dwellings as evidenced by Mrs Ryle's photographs of Surrey Drive were all at least 2 levels, and many were more. Mr Kelleher's photographs showed some single level housing in Brees Road, but the vast majority of housing in the immediate locality is 2 or 3 level. Mr Cicero sought to distinguish between the housing proposed and the existing stock in the neighbourhood by pointing to the contrasted floor areas of the dwellings. Mr Fredman was prepared to agree that there would be few existing dwellings of 12 squares or less in Surrey Drive; but there were many other 3-bedroom homes.

117. Mr Cicero challenged Mr Fredman's opinion of consistency with the character of the area, pointing out that the area had been developed since the 1950s and that it had no consistency of architectural style. Mr Fredman stated that in order to respect the character of the area, the development should incorporate elements found in the area. He pointed to inconsistency with the predominant character of roof style, being a relatively standard roof pitch, and also of building materials.

118. Mr Fredman accepted that in terms of the traffic evidence, there would be no difficulty in absorbing the predicted number of vehicles on Surrey Drive. His criticism related to the internal road. In particular, the length of the internal road was in excess of 60 metres, and should have dimensions that would enable it to be designated a public street, under Element 8: see E8.T3. He agreed that if Mr Tucker's suggestion to widen the drive near the Unit 1 was implemented, the design would be improved, and generally deferred to Mr Tucker's expertise. The extent of driveway paving, however, added to the buildings and paved open space areas, meant that a high proportion of this steeply sloping site would be paved.

119. Mr Fredman's interpretation of overshadowing impacts indicated that the open spaces areas for Units 1-5 would be overshadowed through most of the day, including most of the period between 11 am and 3 pm at the equinox, and the extent of overshadowing would be greater in winter. The extent of the area provided for each unit did not compensate for other deficiencies. Only Unit 7 had open space exceeding the minimum requirements.

120. Shadows from Units 9 and 10 would fall across the boundary onto the Ryle property at 3 pm, affecting the rear open space area. The extent to which the shadow would be absorbed by the width and depth of the cut on the Ryle side of the boundary was discussed. Taking the shadow diagrams submitted by the Applicant, the period at which there would be a substantial degree of overshadowing would not commence till about 2 pm, so that about an hour of the design period under Technique E6.T10 of the Good Design Guide (sunlight to secluded open space of adjacent properties) is in question. Much less than 50% of the secluded open space would be affected. Mr Fredman agreed that this was acceptable under the Guide.

121. With respect to overlooking, Mr Fredman referred to two design features. A balcony at Unit 9, the dimensions of which are 1 x 3.5 metres by scale, may overlook the Ryle property. He agreed that it was not part of the main open space for the unit, and that it could be screened. He also concurred that the kitchen window of Unit 10 could be made a highlight window. He further agreed that the present overlooking opportunities in the area could be taken into account when considering this issue.

122. Mr Quinn called Mr Higgs, a director of TTM Consulting Pty Ltd, to give evidence on matters related to traffic and parking. Mr Higgs readily accepted that Surrey Drive would be able to safely accommodate the additional traffic which would be generated by the proposed development, and that the development also provides adequately on site for parking likely to be generated by it. Where he parted company from the Applicant's traffic consultant was in the levels and relationships between the driveway, the garages and the ground floor levels of the units.

123. The revised plans deal with the differences which Mr Higgs identified in his original report between the driveway levels and garage floor levels. His evidence was directed to the failure of the revised plans to deal with the "flow on" effects of changing these levels. These included recognising that the relationship between floor level and garage floor level had changed, but not altering the staircase between the two levels to take account of the extra height and length required, in the typical section of Units 1-6. Mr Zagami did not agree that there needed to be a further intrusion into the open space to accommodate a higher stair, as he considered that one additional riser would be adequate to deal with the revised change in levels.

124. Mr Higgs also identified heights of buildings above Mrs Ryle's property, which had increased in response to the alteration in driveway levels. He stated that at the boundary 1.8 metres from the carport of Unit 10, ground level is about RL 26.0. The carport fascia would be at about RL 31.5. There would be a retaining wall 2.6 metres above ground level. Mrs Ryle's paved outdoor area (about 2.2 metres from the boundary) was at RL 22.86. The fascia for the Unit 9 "carport" would be at about RL 32.8, with the Ryle's outdoor area at RL 22.84, about 9 metres to the south-east of the boundary. The ground level of the visitor carpark had increased by more than a metre. There would be retaining walls of up to 3.5 metres up to the garage floor level on the east boundary.

125. These heights were further discussed during Mr Zagami's evidence. Mr Zagami pointed out that the Ryle property had a height difference of 3-4 metres between its ground level in the vicinity of the boundary and the natural ground level of the subject land, as a result of benching to obtain a level surface. He did not dispute the general accuracy of the heights and levels given by Mr Higgs for Units 9 and 10 in the vicinity of the common boundary.

126. The techniques for Element 6 of the Good Design Guide would not allow a building with a wall height of 8.6 metres within 2 metres of a side boundary. The fact that the building is a garage and the height is dictated by difference in ground levels rather than wall height make this a matter of amenity rather than for application of the Guide. The difference in ground levels also tends to make Mrs Ryle's western boundary an area where her property is vulnerable to the impact of any form of development proposed for the subject land.

127. Mr Cicero pointed out that the Council officer's report on this proposal had been positive; and that the revised plans in effect dealt with a number of design details that had been the subject of recommended conditions of permit. In particular, the inclusion of changes to the driveway width and gradients and relative floor levels as recommended by Mr Tucker was acceptable to the Applicant, and were now incorporated into the proposal.

128. Although the site was steep, it was submitted that this had been turned to good account. Sites of similar steepness in the area had also produced substantial built forms, and a key characteristic of the area was the dominance of built form over other features such as landscaping. Only one dwelling had a direct presentation to the street. The slope had been used in the design to reduce the dominance that the balance might have had from a streetscape perspective. As some of the open space areas created by the neighbours show, there is difficulty in creating usable space within the site given its steepness.

129. Mr Cicero submitted that the only consistency in housing style was that all housing was post-war. That left scope to develop the subject land in the manner proposed. He submitted that the proposal would broaden the range of housing available by adding an opportunity for "12 square" houses, not presently available among the very large existing dwellings.

130. Mr Zagami's evidence identified the steepness of the land and lack of landscape cover as its most significant feature. He found the built form character of the area to be lacking in a single consistent architectural style, theme or period other than that it was of relatively recent construction. He was of opinion that the proposal would provide a variety of housing style and size not readily available in the area, while the vacant site gave an opportunity to introduce an innovative architectural style. Against these opportunities, he balanced the constraints of avoiding negative impacts to adjoining land, given the size and location of adjacent buildings, the dominance of large buildings (related to the slope), and lack of canopy trees.

131. When questioned, Mr Zagami distinguished between new and contemporary architecture, with particular reference to recent examples of mock Tudor in the street. He offered the proposed development as a more imaginative style, that was contemporary.

132. Some common features in architectural styles found in the area that Mr Zagami could identify were balconies, fenestration and basement type parking. I would go further, to the more general observation that building to take advantage of the views across the valley is a prevalent design feature, no matter what the nominal style.

133. Mr Zagami was of the view that the existing detached houses had not handled the issue of height at all well. They all suffered from overlooking. He had sought to create a visual buffer to eliminate overlooking.

134. The constraint of overlooking has caused a number of the proposed dwellings to be designed so that they do not have balconies or large windows with a view across the valley, either because they are opposed to other dwellings within the site, or for privacy protection. In my view, this leaves the future occupants with little compensation for undergoing the inconveniences of a steep site, remote from even convenience shopping.

135. Despite Mr Zagami's reference to the bus route to Moonee Ponds and Highpoint, I do not regard this site as having "a high level of accessibility in terms of public transport". The site has excellent access to facilities, services and regional links in the sense that you can easily reach them by car. Mr Zagami ultimately agreed that the nearest bus does not meet the "walkability" distance of 400 metres away. Mr Cicero conceded that the site was car-dependent. The isolation of the site from public transport and all facilities is not a matter that necessarily excludes the subject land from multi-unit development under local policy. The isolation of this area is recognised in the policy, yet it still designates the subject land as part of an area in which moderate infill may occur. However, isolation means that the subject land does not meet Element E1.C3 of the Good Design Guide: "Medium density housing should be encouraged close to public transport, shopping and community facilities."

136. Mr Zagami's evidence was to the effect that each dwelling had excellent solar access, and that "soft" landscaping could be achieved in private courtyards, front balconies and the frontage setback. There was no building to boundaries in the proposal. When questioned by Mr Quinn on the open space provision, he agreed that the private open space provision met only the criterion of "25 sq.m. in one parcel", but argued that the Good Design Guide did not require 40 sq.m. to be provided in every case. He had sought to provide diversity in open space as well as other elements of style. The units with larger floor areas had been given larger areas of open space. Good landscaping of the common area would be a compensating factor. The units also had their rear areas. He indicated that these could be used for such things as external hot water services, rather than being effective open space; but the kitchen in Units 1-6 (facing the excavation) would look towards the lower layer of a planted terrace, according to the landscape proposal.

137. Mr Zagami also took the issue of sunlight to open space further, with an additional set out shadow diagrams. These indicated that the open space (the deck areas) for Units 1-5 would be in nearly full sun from 9 am to11 am, that between 12 and 3.00 pm they would be in full shade; and that they would get the western sun by 4 pm. The differences in levels had been taken into account in the diagrams.

138. Mr Patrick was called to give evidence as to his landscaping proposals. He had dealt with the western retaining walls by showing a solid base that might be massed rocks, or timber. He had not looked at the engineering requirements, and the wall may need to be in solid masonry. If the toe of the wall was about a metre from the boundary, the space would be limited, given that the setback was 3 metres. Some beds could be placed there, although he agreed the rear areas were more service areas. Suggested plants were all shade tolerant species.

139. Mr Patrick was of the opinion that there would be enough space near the visitor carpark for planting to screen the area from the Ryle property. The existing tree group would be kept in the short term, but he considered that tube stock should be planted to be ready to take over in 5-6 years. He had considered the impact of headlights on the Ryle house, and found that they would shine above the house rather than into the windows. A fence could be placed behind the tree group. The retaining wall could be about hidden behind a 1.8 metre fence. A retaining wall about 1.5 metres high would run along under the rear wall of the carports on the eastern boundary.

140. Mr Patrick was also of the view that wattles or eucalypt species would grow in the 0.5 metre planting strip on the east boundary near the entrance. Six metres would be an adequate height for plants there to be an effective screen.

141. Mr Tucker's evidence on traffic and parking, incorporating the revised ground levels, was generally accepted, and the parties agreed that there was no need to call him for cross-examination on his statement. The issue of developing this lot at the head of a cul de sac for 10 units is not one of capacity of the road to accept the additional traffic, but of protection of the amenity of the neighbouring properties.

142. At the end of the hearing, Mr Quinn sought leave to make a written submission. Mr Cicero objected. As the matter of proposed conditions remained to be dealt with, directions were given for the circulation by the Council of a revised draft set of conditions, and Mr Quinn was given leave to file and serve a final submission together with comments on the draft conditions. Mr Cicero was given leave to reply.

143. Mr Quinn submitted that the evidence of character of existing development in the area showed that houses typically followed the contour of the land, which meant that buildings were set on similar levels, or a relativity of levels caused by the street slope, rather than across the slope. He admitted that there was an exception at 46 and 47 Surrey Drive, as they were at the end of the cul de sac. This is clearly a mistaken reference as regards 47. In my view, the pattern of building shown by Mr Kelleher's excellent photographs shows the intention to create relationships between the buildings and the valley view. The fact that buildings may be set back to the same contour at the front does not mean that they follow the contour to the same extent, or have a design relationship to each other. Many of the larger buildings are located close to their side boundaries on at least one side, maximising the bulk across the site so as to maximise the view. The depths of the buildings vary. Some reach almost to the rear of their blocks. I consider that a house on the subject land would also be likely to be designed to follow the view.

144. Mr Quinn made reference to the case of Hadziomerovic v Nillumbik Shire Council & Ors [1999] VCAT 1227, in which mass, building height and minimal setbacks were found to be reasons for refusal of a permit for three dwellings on a site with a steep slope. The character of the area in that case was described as natural bush setting, with "rural atmosphere", and the design response had been that dwellings were perched high on the lots, with large areas of open space adjacent to a treed reserve. This character is clearly different from the character of the neighbourhood here. The case is an illustration that a building that meets the setback requirements of the Good Design Guide, and is acknowledged to be of innovative, well-articulated and attractive design, may nevertheless be unacceptable as an overdevelopment.

145. I consider that the other matters raised in Mr Quinn's final submission have been adequately addressed already. Mr Cicero made no further response to them.

146. The evidence of the planning consultants conflicts on a number of issues, as I have indicated. Where there has been conflict on objective elements such as Good Design Guide techniques, it has been necessary for Mr Zagami to modify a number of his original statements, although overall I accept that the proposed dwellings have many good features. A number of the criticisms originally made in Mr Fredman's evidence have also been dealt with in the revised plans. Some matters, however, could not be dealt with by minor design changes.

147. I have concluded that the Council's submissions should be broadly upheld. It follows that I accept that the proposed development generally complies with the technical aspects of the Good Design Guide, although there is a failure that I regard as significant in relation to the quality of private open space for Units 1-5, and in the extent to which the living areas and open space are oriented to the west in Unit 9.

148. Although the units all have three bedrooms, the living areas are not large. I accept that the dwellings provide a smaller housing alternative than the nearby houses in Surrey Road, and could provide a wider opportunity for more people to share the valley views, with north facing terrace style open space (if it could be provided without excessive shadowing) being seen as an advantage to those who do not want the challenge of establishing gardens on a slope. Against this in terms of housing choice, however, is the fact that the units are fundamentally the same, so that they only add one element to the housing stock. A further adverse factor is the site's total dependency on private vehicles for transport to all facilities and services. More intense development opportunities are for preference located more conveniently to community facilities and services. The reliance on stairs also narrows the range of people for whom this form of housing could be suitable.

149. Although the subject land has potential for multi-dwelling development, the proposed 10 units have been designed so that much of the development is pushed to the western side of the site. While this starts as a function of the location of the existing crossover and driveway in the narrow frontage, it is the intensity of development that causes the access road to move west to allow dwellings to be located on both sides of it, and to be so long. The concentration of dwellings very near the west boundary has resulted in the private open space for Units 1-5 being substantially overshadowed, and also dominated by northern walls, instead of designed to maximise solar access to secluded open space and associated living areas. This style of open space may be acceptable in inner city developments, but I consider that the degree of paving and high surrounding walls is excessive for the limited "open space" areas proposed for dwellings on this large suburban site. The objective of space for a canopy tree (E3.01 of the Good Design Guide) is not provided for in the principle open space area, but relegated to the rear yard. The rear walls of Units 1-6 are located too close to the walls of the excavation for a rear yard to add anything to their amenity, and I am inclined to agree that in the long term, these rear areas will become a problem of maintenance.

150. Photographs produced to show other two-storey multi-unit dwellings in the area, designed on a hill and incorporating basement parking, with a central paved drive branching to individual garages, illustrate the overbearing impact of masonry that can be produced by this combination. Retention of the existing retaining walls and terraced area as garden at the front of the subject land would modify the exposure of the site to the street, but could not conceal the high proportion of paving, the overall bulk of Units 1-6 (with their attendant garages) and the limited opportunities for the softening effect of landscaping.

151. A further adverse factor lies in the implications to the rest of the street of having the greatest generator of traffic located right at the head of the cul de sac. The access road itself is in my view too close to Mrs Ryle's house to be acceptable for a road serving so many dwellings. Although the evidence shows that the access road can be made to accommodate the amount of traffic generated, the traffic from 10 units, plus the visitor carpark, on a road located so close to the common boundary at the south-eastern end of the subject land will create an impact far in excess of the traffic generated by any other property in the court. Instead of being one of the properties most removed from through traffic by being located at the end of a cul de sac, Mrs Ryle's property would be sharing a crossover with the most active generator, and the traffic from all but two of the units would be passing at one point within 15 metres of her house.

152. The increase in noise generated by vehicles accelerating up the slopes may be an exacerbated effect as far as the Ryle property is concerned. The windows of habitable rooms are located opposite the lower third of the subject land, so that the noise of accelerating vehicles going to all but the front unit may be experienced, instead of vehicles going up a drive to a single house. The element of acceleration within the site may make vehicles noisier than traffic in Surrey Drive, which is laid out so as to follow the contours and is quite level in this area.

153. Even if the impacts at the head of the cul de sac were no worse than the impact of ordinary traffic on a house further down the street, the amenity of the neighbouring lots is still an issue. In J A Thompson Surveyors v Knox City Council & S Healy English (1998/37377, decided by Mr Marsden) Tribunal stated:

"In most cases, persons purchasing property in a court do so in the expectation that they will obtain a higher level of amenity than those who reside in through streets. Courts, because of such factors as small population numbers, narrow street widths and the absence of through traffic, seem to offer a greater degree of tranquillity which is highly prized by residents..........

These comments should not be construed as meaning that there should be no increased density in courts or culs-de-sac. What the Tribunal suggests however is that the amenity bar is set higher than, for example, in situations where streets are located in a normal grid pattern."

154. This has been accepted a number of times by the Tribunal. A note referring to the difficulties presented by unit proposals in courts appears at 5 VPR 3. Ten units is a high number to propose for the end of a cul de sac. The need for site responsive design must also be considered to be even higher than usual, having regard to the steep slope that it the outstanding feature of this area. Bulk and mass can be accentuated rather than minimised by design, depending on how the steep slope is treated, as described in the design principles included in the Planning Scheme.

155. The location of Units 9 and 10, as well as the visitor carpark, is unresponsive to the neighbouring property in that no attempt appears to have been made to modify the design so as to mitigate the combined effect of the steepness of the site and the height of buildings in close proximity to the common boundary. Providing screening devices to prevent direct overlooking does not touch the problem of excessive overall height of the structures near the boundary above the Ryle house and primary outdoor recreation area (which I will not describe as secluded open space, as although it is secluded from Surrey Road, it is exposed to a wide range of views across the valley).

156. I accept (as was generally accepted) that overlooking to adjoining properties would probably occur no matter what the form of development undertaken at the subject land. The chances of a single dwelling being located with more attention to the view than to the amenity of the Ryle property does not mean that dwellings of a type that require a planning permit should be allowed to disregard the Residential Design Principles contained in Clause 22.06-17 of the Planning Scheme. The comparison with what might be proposed in different circumstances is only one of many factors to be placed in the balance.

157. The use of the existing crossover and the provision of on-site visitor parking remove two of the common problems faced by multi-dwelling developments in a cul de sac. However, there is only a token separation between the access road and the site boundary in the vicinity of Unit 1. I do not accept that an effective visual screen could be established by planting in the space provided, certainly not for at least some years. Construction of a fence along the boundary next to the retaining walls would not in my view be a worthwhile improvement.

158. The form of housing proposed by the Applicant differs in several significant respects from the houses which have been constructed to date in the newer part of Surrey Road. These are fairly consistent in their use of building materials (masonry and pitched tile roofs), front setback and address to the street frontage, and front gardens, all of which are relevant to the Residential Design Policy in Clause 22.06 . In these respects, the proposal is at odds with the existing pattern, which although not yet complete, shows a general consistency of these characteristics even in the case of the existing examples of resubdivision of an original lot to accommodate two dwellings.

159. However, neighbourhood character does not appear to me to be a very powerful argument in favour of any party in this case. The elements of "character" which I have identified appear to me to be relatively weak. They do not convey the range of styles, and the dominant impact of very large dwellings designed to capture the preferred view from the various vantage points afforded by the configuration of the subdivision on the hillside, both in Surrey Road and above in Brees Road.

160. However, I have had regard to the fact that although there is a very massive dwelling at 42 Surrey Road, the development to the east and south of the subject land in the cul de sac is single storey to the street, set below street level. I consider that this reflects an intention to minimise the bulk presented by these large buildings to the street, which is consistent with the intention of the Planning Scheme's design principles, just as the design of 42 Surrey Road is not. The dwellings which reflect the design principles should not have their amenity prejudiced by development which does not.

161. Although Units 1-6 would be a continuous mass of building for a depth of some 60 metres up the site, with the majority of the land east of these units being occupied by the access road and driveways, crowned by Units 7 and 8 around the top part of the site, I do not regard that by itself as unacceptable in this context. The relatively small footprint of each dwelling, and the distance from the eastern boundary of the site, compensate for the lack of "stepping" downhill toward the east. The impact would also be ameliorated by the retention of the existing terrace at the front of the site, the excavation, and the limited angle of view from the street. From below, the degree of excavation on both the Ryle property and the subject land and the orientation of the houses on the eastern side of the cul de sac would limit the view across the site. But the proximity of two dwellings to the eastern boundary of the subject land, at heights that I consider to be excessive having regard to the neighbour's amenity, is unacceptable.

162. If Units 9 and 10 are removed, an opportunity would be created to modify the adverse effects of the siting of Units 1-6, which are too close to the western boundary and each other to provide satisfactory open space areas and solar access. The more extreme changes of levels could also be modified. However, a complete redesign would be required, and whether eight units could be produced without an unreasonable degree of detriment to the Ryle property is a matter on which I offer no comment, having regard in particular to the constraints of the existing crossover, a steep entrance and internal road so close to the common boundary.

163. The Local Planning Policy Framework shows that sites have been designated elsewhere for medium density development to occur. It is not necessary to increase the density of development on the subject land to the extent of 10 units in order to comply with this aspect of State and local policy.

164. For these reasons, I have concluded that no permit should be granted.

165. Mr Quinn applied for Mrs Ryle's costs arising from late service of documents and last minute revisions to the plans. The revised plans had been received by Mr Fredman's firm three days before the hearing was to commence, contrary to the requirement of the Planning List's Practice Note on General Procedures. The principal of the firm, Mr Basil Elms, gave evidence for the limited purpose of the costs application. He stated that Mr Zagami had brought in some drawings, with a letter dated 10 December 1999, and they had had a brief conversation, but not looked at the plans in detail. Then the revised plans had arrived in July, with quite a lot of extra detail, which conflicted substantially with the information in the plans he saw in December. The submissions prepared before the first day of the hearing had been based totally on the December plans. He referred to some of the differences in levels as between the two plans, and produced an account showing a fee for the work then carried out by Mr Fredman, related to the revised plans.

166. Mr Fredman stated that he had spent 12-14 hours of the weekend before the hearing going over the revised plans, which incorporated changes in levels, and the evidence of the Applicant's witnesses. He had reassessed the plans and discussed them with Mr Higgs, the traffic consultant.

167. Mr Cicero indicated some areas on which he wished to contest the application, and the matter was left over to be pursued separately. While recording the nature of the evidence that has already been given on this issue, I will adjourn the costs application and give directions for dealing with it if it is to be pursued.

168. By consent of the parties, the Council is excused from any costs application.