Mr L Sayer of WSC Planning & Development Consultants.

Mr A Gerritsen for the owners and occupiers of properties at Nos. 16 and 18 Bayview Road and Nos. 1/14 and 15 Ozone Avenue.

1

This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Mr V Chernov seeking review of a decision made by the Bayside City Council ("the Council") to determine to refuse to grant a permit in permit application no. 2004/0239. A Notice of Refusal was issued on 27 September 2004. An Application for Review was lodged on 5 October 2004.

2

At the commencement of the Hearing, Mr Sayer sought leave to amend the plans submitted with the permit application with plans filed and served in accordance with the Tribunal's Practice Notes. There being no objection, I granted leave to substitute the plans submitted with the permit application with plans served on 10 December 2004.

3

The subject site is located on the west side of Ozone Avenue. It has a width of 15.24 metres, a depth of 47.26 metres and a site area of approximately 720 square metres. The site was previously occupied by a single storey dwelling with a driveway along the southern boundary. There is a large paper bark tree located adjacent to the site, within the nature strip. There is no vegetation on the land, it having been removed recently.

4

The review site is part of an established residential area and shares abuttals with dwellings to the rear (west) and south.

5

The property to the west, at No. 18 Bayview Road, comprises a double storey dwelling with rear pool, pool-house (accommodation associated with the residence) and shed. There are some trees to the rear of which there is one 10 metre high Queensland Box tree and an 8 metre high Cotoneaster.

6

To the south of the subject site is a double storey dwelling that is setback by a minimum of 2.4 metres from part of the common boundary. It has north-facing windows. The dwelling is setback by some 11 metres from the street with a garage setback by around 6 metres.

7

To the north is the Royal Melbourne Golf Course and opposite, on the east side of Ozone Avenue, are additional dwellings. Two large trees on the golf course abut the northern boundary of the review site. Both are eucalypt of some 20-22 metres in height[1].

8

Ozone Avenue is a no through road with no on-street parking restrictions. The street terminates at the northern end with a high cyclone wire fence that is associated with the golf course and some low plantings.

9

The proposal comprises the development of two double storey dwellings on the land. Each unit would contain three bedrooms and be of a rectangular style with a flat roof.

10

The dwelling proposed toward the front of the land is numbered as No. 19 Ozone Avenue. Excluding the front porch/entry, it would be setback by 6 metres from the street frontage with a balcony at the first floor level above forward of the building façade. A double car garage is proposed to the front of the dwelling, utilising the existing (widened) driveway/crossover.

11

The rear dwelling (No. 17 Ozone Avenue) would be accessed via a separate driveway along the southern boundary. The unit would have a double car garage and would be built to the southern and western boundaries at ground level. The setback from the ground level from the northern boundary would be 2.4 - 3.6 metres except for a sauna that would abut that boundary. The boundary walls would be 3 metres in height (except for a short section along the southern boundary at 2.4 metres) plus a 2 metre masonry wall along for the remainder of the western site boundary. The first floor level would be setback from the southern and western boundaries by 3 metres.

12

Open space is proposed to the north of each dwelling plus some balcony elements. The rear dwelling would have a pool abutting the northern boundary. The street tree would be retained and a draft landscape plan forms part of the application material.

13

The subject site is zoned Residential 1 under the provisions of Clause 32.01 of the Bayside Planning Scheme ("the Scheme"). A permit is required for the development of two dwellings on the land. The decision guidelines of Clause 32.01 require consideration of state and local policies and the requirements of Clause 55 must be met. A schedule to the Residential 1 Zone applies.

14

A small part of the rear portion of the subject site is affected by a Special Building Overlay. A permit is required for buildings and works. Melbourne Water has offered no objection to the proposal subject to conditions being included on any permit to issue.

15

A Vegetation Protection Overlay (Schedule 3) applies to the land however no vegetation is proposed to be removed as a part of this application.

16

A Design and Development Overlay (Schedule 2 Building Height Control - Inland Areas) where a permit is required for buildings and works.

17

The provisions of Clauses 14, 15, 16, and 19.03, Clause 21 (Municipal Strategic Statement) and Clause 65 (general decision guidelines) are relevant and have been taken into account by the Tribunal. The Council's adopted Character Study includes the subject site is Area H. Melbourne 2030 has been taken into account.

18

I have considered the submissions presented with the benefit of having inspected the subject site and locality subsequent to the Hearing (including the property to the rear at No. 18 Bayview Road). I do not recite all of the material presented, as the written submissions tendered by the parties are retained on file, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme.

19

While a range of issues were raised in submissions, the determinative issue in my view is the position and form of Unit 2 to the rear of the land. While there are issues relating to Unit 1 and tree protection, I consider that the proposal fails alone in relation to the form and visual bulk associated with the proposed rear dwelling.

20

It is not in dispute between the parties that the development of the land for two dwellings is acceptable. That is a reasonable position given the site's context, the zoning and policy direction that applies, and the relatively uncomplicated physical circumstances of the land.

21

The Council raised concerns about the front setback of the proposed dwelling known as No. 19 Ozone Avenue, the lack of articulation to that front dwelling and the limited opportunities for landscaping. Mr Gerritsen submitted that the front setback does not comply with the variation to Clause 55 set out in the Schedule to the Residential 1 Zone. The Council and Objectors were also critical of the architectural styling which was said to fail to respond to the character of the area. These submissions were challenged by Mr Sayer who submitted that the proposal is an acceptable response to the character of the area including newer dwelling forms.

22

I have considered these submissions having regard to the purpose of the Residential 1 Zone, provisions of Clause 55 and relevant policies at Clauses 16 and 21. I have also considered the Council's Urban Character Study which includes the subject land in Area H. That emphasises the area's garden character and notes the absence of a highly valued architectural style. The "desired future character statement" refers to building scale and setbacks and includes:

The siting of new developments ... should reflect established boundary setback patterns and develop with the setback areas, garden settings which reinforce both the character of the location and the relationship of private gardens to the street.

High front fences and the use of front setbacks for vehicle storage purposes should be avoided.

New development ...should be encouraged...(and)...should respect the scale and major design themes of existing dwelling styles, maintain the development pattern of detached villa style housing and retain the existing character of well developed garden settings and low front fences.

23

The references in the statement to detached building style and garden settings include streetscape presentation but there is also recognition of the role rear and side setbacks play particularly in older areas in terms of visually separating dwellings. It has frequently been held by the Tribunal that side and rear setbacks, including a "backyard-scape", are relevant in terms of neighbourhood character and, in this case, the backyard setting of the review site includes low structures and plantings. As noted by Objectors, there are no examples of double storey dwellings in rear yards.

24

In relation to streetscape and neighbourhood character considerations I find as follows:

•

I have no issue, in principle, with the architectural response including the use of a flat roof. While there is a predominance of pitched roof forms in the area, there is also a wide range of dwellings styles apparent. The more rectangular lines and use of materials and finishes to provide articulation are not the norm, but, in this setting, that is not fatal to the Application.

•

Having said that, I agree with Objectors that the proposal probably does not meet the front setback variation which would require a setback of 9 metres. There is a difference in interpretation about this element of the Schedule to the Residential 1 Zone between the parties and that may be worthy of investigation by the Council as clarification may be required. The front dwelling would be a prominent element given the forward position relative to No. 15 Ozone Avenue and the mass of building made more obvious by the lack of any modulation to the southern wall other than through materials. This element would sit forward of the dwelling to the south and its visible open space given that the forward garage associated with that dwelling is to the south of the lot. As the dwelling is at the end of the street it would not disrupt the entire streetscape but is capable of improvement.

•

The use of a double garage for the front dwelling plus a separate driveway to the rear dwelling raises concerns about the extent of site frontage occupied by paving. My concern is that there are limited opportunities for garden planting to contribute to the setting where expanses of paving to the front of sites are not the norm and landscaping is an important theme. This may be less important given the position of the site at the end of the street, nonetheless, it is a matter that is of some concern and contrary to Clause 55.

•

The site coverage and hard paving associated with open space areas limits the extent to which planting can be achieved on the subject land. The setting of the site is such that the proposed dwellings would enjoy an outstanding aspect to the north over the golf course framed by existing vegetation. I have no issue with the northern elevation of either unit and interface with the golf course of either dwelling.

•

My greatest concern relates to the mass of development positioned to the south-west corner and rear of the land. The rear unit is proposed to be constructed wholly to both south and west boundaries for a considerable length (10.17 metres to the west and 13.81 metres to the south). The upper level is then setback by 3 metres. While the stepping of the upper level has sought to reduce the visual mass of a double storey form, there is no opportunity for planting around the development on the review site to ease the visual imposition to neighbours. Instead, the development relies on some trees to the west, along the rear boundary of No. 18 Bayview Road (noting these are within a drainage easement). Those trees would assist to mask the building to some extent, assuming that they can be protected. The land to the south enjoys no similar advantage, the rear garden being entirely open. The proposed dwelling would extend along the boundary for nearly the whole of the depth of that adjacent private open space with no opportunity for landscaping on the review site. In a setting where there are only low structures in rear yards, or gardens with varying landscaping, I find this response to be unacceptable.

•

I add that the visual impact to the adjacent land, particularly to the south, is exacerbated by the limited articulation to upper level walls.

25

I note that the permit application was supported by Council officers and it appears from my reading of the officer report that reliance was placed on a streetscape assessment, the need to meet the side and rear setback provisions of Clause 55 and the variation to that Schedule. I have already commented on the issue of the rear of sites as relevant to neighbourhood character. Moreover, on my reading, the variation in the Zone to the provisions of Standard B17 does not relate to a boundary wall and therefore the desire to achieve an upper level setback to the west and south elevations of the rear unit at 3.44 metres is wrongly premised. Putting that to one side, I am of the view that the ability to meet the provisions of Clause 55 or a variation in relation to side and rear setbacks does not mean that a double storey dwelling in the rear yard, in the position and form proposed, is acceptable in neighbourhood character terms.

26

The final matter upon which I comment is the protection of trees on land adjacent to the review site. The relevant trees are the two eucalypts abutting/on the northern boundary of the subject land, within the golf course, two trees along the rear boundary of No. 18 Bayview Road, and the street tree. I note that the canopies of these trees overhang the subject land but not substantially at a low level. Arborist reports were prepared for the Council, Applicant and Mr Gerritsen, although no arborist was called to give evidence. The assessment for the Council only considers trees within the golf course and on the street. The arborist assessment for the Applicant examined one tree within the golf course, the street tree and a tree on the review site that has since been removed. The arborist report for Mr Gerritsen considered the trees within the golf course and trees on his land.

27

It appears that the design response and Council officer's assessment have focussed on the trees to the north and to the street with less consideration to the trees on the land to the west. It may well be possible to construct the development using techniques such as pier and beam construction although I have an underlying concern about the proximity of the proposed development to the existing trees particularly to the rear of the subject land. Providing setbacks to a rear dwelling that is reduced in scale could have the benefit of improving the outcome for the existing trees.

28

In relation to other matters I briefly conclude that:

•

The proposal would not present unreasonable overshadowing in so far as the tests of Clause 55 appear to be met.

•

The proposal would not present unreasonable overlooking to adjacent properties to the south and west.

•

It appears that the development could meet the requirements of Melbourne Water in relation to the Special Building Overlay and that could be addressed by conditions.

29

In conclusion, there is no doubt that the review site is acceptable for development for two dwellings but the mass and positioning of the rear dwelling is the principal failing of this proposal. There are some other issues that could also be addressed in a revised proposal as I have discussed.

30

For the above reasons, I will not allow the Application for Review and order that the decision by the Responsible Authority be affirmed.

[1] This is based on an arborist report by Dr P Yau prepared for Mr Gerritsen. The height of one tree is estimated by an arborist for the permit applicant (Wombi's Tree Service) to be 15-22 metres.