1. Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the advertised plans submitted with the application but modified to show:

(a) Relocation of garages, private open space and access in accordance with plans prepared by Andrew Ramage dated 5.4.04 No. TP1-TP4.

(b) A reduction in the amount of hard paving within the private space of the proposed dwelling to the satisfaction of the Responsible Authority.

(c) Provision of pedestrian access for unit 2 from Rosanna Road to create a sense of address for the rear dwelling.

(d) Landscaping as required by Condition 2 of this permit.

(e) Engineering plans showing a properly prepared design with computations for:

(i) The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas;

(ii) The details and specifications for the construction of the right-of-way as required by Condition 3.

(f) A schedule of external building materials and colours, including details of cladding and roofing materials.

(g) A certificate from an appropriately accredited person/company indicating that the proposed dwelling has been designed to achieve a four star energy rating, using the Sustainable Energy Authority of Victoria 'FirstRate' system or equivalent.

(g) A report from a qualified arborist outlining the measures necessary to protect the trees on 21 Kathleen Street adjacent to the eastern boundary of the subject site during construction.

2. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and shall include:

(a) Details of planting along the former driveway and in common areas.

(b) The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site.

(c) A minimum of two (2) large canopy trees throughout the site.

(d) A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified along the driveway and in common areas.

(e) location and details of paving, steps, retaining walls, fence design details and other landscape works including cut and fill.

An endorsed copy of the plan must form part of this permit.

3. Engineering plans and specifications for the construction of the right-of-way adjacent to the site must be submitted to, and approved, by the Responsible Authority. Details must include:

(b) The alignment of the road pavement to incorporate retention of the existing vegetation within the laneway as far as possible, and to protect overhanging branches of existing trees along the right-of-way within private properties.

(c) Surface and underground drainage where required.

(e) Kerb and channel or concrete edge strip as required.

(g) Any proposed landscaping including measures to prevent the laneway being perceived as a through road.

All roadworks must be constructed in accordance with the approved plans and specifications, at the cost of the permit holder, to the satisfaction of the Responsible Authority.

4. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

5. The development permitted by this permit must not be occupied until: -

(a) The parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority.

(b) The garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

(c) Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority.

(d) The Right-of-way has been constructed and completed to the requirements and satisfaction of the Responsible Authority.

(e) The dwellings are numbered in accordance with Council's allocation of street numbers.

(f) The existing dwelling has been modified in accordance with the endorsed plans.

6. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coast. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

7. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

8. All works associated with the construction of the access points are to be completed at no cost to the Responsible Authority and Vic Roads.

9. Construction activities within the road reserves must be prepared in accordance with the relevant sections of Vic Roads Standard Specifications for Roadworks.

10. Worksite traffic management practices must be in accordance with the Australian Standard AS1742.3-2002 'Manual of uniform traffic control devices - Part 3: Traffic control devices for works on roads'.

11. This permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two years of the date of this permit.

(b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

Mr Jane Pettifer and Mr Neil Clancy appeared in person and presented written and oral submissions accompanied by photographs.

1 This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Banyule to refuse to grant a permit in application no. P503/03 for the land at 146 Rosanna Road, Rosanna to be developed for the purpose of a double storey dwelling at the rear of an existing dwelling.

2 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Ms Halls requested the Tribunal to amend the application for permit by substituting the names of the owners, Andrew Christy and Freda Miraklis for that of Andrew Ramage contained in the original application.

3 There was no objection to the substitution and the Tribunal agreed to make the amendment in the manner requested.

4 The subject site is located on the east side of Rosanna Road approximately 150 metres south of the intersection with Station Road. The site is regular in shape and has a frontage of 15.24 metres, a depth of 44.04 metres and a area of 671 square metres. The land falls from the rear north east corner to the south west corner with a fall of approximately 3.4 metres from the rear boundary to the front of the dwelling with the driveway being approximately 1 metre lower to the south east corner.

5 I find the following description of the site and locality taken from Ms Kellock's written submission to be an appropriate one:

The land contains a single storey brick dwelling with a pitched tiled roof. The dwelling presents the appearance of a 1½ storey building however due to the slope of the land. The southern part of the dwelling is raised approximately 1.5 to 2 metres above ground level. Windows within the southern façade are elevated a minimum of about 1.7 metres above ground level.

The dwelling is setback a minimum of approximately 7.6 metres from the street frontage, 1.2 metres from the northern boundary and 2.9 metres from the southern boundary.

Vehicle access to the land is provided via a driveway that extends along the southern side of the dwelling. It provides access to an informal parking area that is sited to the rear of the dwelling, abutting the northern boundary. This area is partly paved and covered by shade cloth.

The main secluded open space area is sited to the rear of the dwelling. This area is relatively open and is devoid of canopy vegetation. The remainder of the yard contains a metal shed, lawn and a variety of fruit trees. There are no significant canopy trees within the rear yard.

Land uses adjoining and nearby the site are outlined below.

This allotment contains a part single and part two-storey dwelling. The front portion of the dwelling is elevated substantially above ground level due to the fall of the land and incorporates an undercroft garage. The rear part of the dwelling comprises a two-storey extension, which is quite "boxy" in scale. This extension is setback approximately 2 metres from the subject site, whereas the remainder of the dwelling incorporates a 1.2 metre setback. The rear yard contains a combination of lawn, shrubs and some semi mature planting.

The southern façade contains numerous windows at both ground and first floor level that have an outlook towards the subject site. These windows provide clear views into the rear yard of the subject site, as the floor levels of the dwelling are raised substantially above the ground level of the subject site.

Vehicle access to the land is available via a driveway that adjoins the northern boundary. It provides access to an under croft garage, which is sited below the northern part of the dwelling. A paved parking and turning area is provided within the front setback. This area extends across the majority of the frontage and is partly screened from the street by a row of semi mature shrubs.

The right-of-way (ROW) extends between Rosanna Road and Kathleen Street, which is approximately 100 metres to the east. It is unpaved and has a width of approximately 6.7 metres. The ROW contains a row of electricity poles and some semi-mature planting.

The ROW currently allows access to the two properties that are sited to its south: 144 Rosanna Road and 19 Kathleen Street. These allotments are provided with vehicle access via gates and a roller door respectively. It is noted that the ROW provides the sole vehicle access point for 19 Kathleen Street. Vehicle access to 144 Rosanna Road is however also provided from the street frontage.

The subject site and 21 Kathleen Street are sited to the immediate north of the ROW. Vehicle access is not currently provided to either property from the ROW.

This allotment contains a single storey dwelling that incorporates under croft parking, thus giving it an effective height of 1 ½ to 2 storeys adjoining the street frontage. The dwelling is constructed of brickwork and incorporates a tiled pitched roof.

The dwelling is setback approximately 12 and 1.8 metres from the street frontage and the northern boundary respectively. The northern façade contains a number of habitable room windows that have an outlook towards the site.

Vehicle access to the land is provided via a driveway that is sited towards the southern side of the allotment and also from the ROW adjoining the northern boundary (see above).

The rear yard contains a shed/garage, lawn and semi mature vegetation.

This allotment contains a single storey weatherboard dwelling with a pitched tiled roof. The dwelling is setback and approximately 17 metres from the subject site. Its western façade contains two (2) habitable room windows that have an outlook towards the site. A deck is sited on the northern side of the dwelling, approximately 15 metres from the rear boundary.

Vehicle access to the land is provided via a crossover that adjoins the southern boundary. An open parking area is provided at the side of the dwelling.

The rear yard contains a number of mature canopy trees that are sited in proximity to the common boundary. These trees vary in height between approximately 7 and 15 metres.

6 Ms Kellock described the proposal in the following terms:

* A total paved surface area, including driveways, paths and paving, of 401m2 or 59.8%.

* The existing and proposed dwellings have floor areas, including garages, of approximately 137m2 and 148m2 respectively.

* Vehicle access to both dwellings is provided via the existing driveway, which has a minimum width of slightly less than 3 metres.

* Each dwelling is provided with two (2) tandem car spaces, including one covered space within a single width garage.

* A small section of the abutting ROW is to be used for turning, thus allowing vehicles to exit the site in a forward direction.

* The existing dwelling is provided with a single "L" shaped parcel of secluded open space, which is accessible from the kitchen/meals area. It has a varied width of 2.6 to 3.2 metres and comprises a total area of approximately 47m2 (27m2 of which has a width of at least 3 metres).

* Unit 2 is to be provided with a courtyard adjoining the northern boundary. This areas has an area of 70m2 (at a 5.5 metre width) and is accessible from the lounge/dining area.

* The ground floor contains an open plan lounge/dining room, kitchen, Master bedroom with ensuite, laundry and WC. The upper floor is occupied by two (2) bedrooms and associated amenities.

* The layout has been designed to take advantage of the northern aspect. The dwelling is setback from the side and rear boundaries as follows:

- 2.3 to 2.4 metres from the eastern (rear) boundary.

* First floor north-facing windows are to constructed of obscure glazing to minimise overlooking.

* The first floor building envelope is stepped in from the lower level on all sides, thus minimising its bulk and mass.

* Ground floor walls are to constructed of face brickwork and the upper floor will be constructed of harditex sheeting.

* The dwelling will have a maximum height of approximately 7.6 metres above natural ground level.

7 The relevant planning controls were fully set out at pages 8 - 19 of the Responsible Authority's submission, which I adopt for the purposes of this determination.

8 The subject application for permit was lodged on 23 July 2003. Following the giving of notice of the application, two objections were received. The grounds for objection were summarised by Ms Kellock as follows:

* Proposal does not meet the desired future character for the GS9 precinct.

* Insufficient space has been provided for landscaping.

* Development will impact on the health of nearby trees and new trees will be competing for water with existing trees (implications with water restrictions).

* Increased stress associated with additional care of family pets.

* Leaving side fence open to ROW is an Occupational Health & Safety issue as a car could roll out into ROW injuring a pedestrian.

* Over development, as there is insufficient space for turning circles and Neighbourhood Character Strategy cannot be met.

* Floor area of development could be accommodated in single storey development.

* Proposal will set a precedent for double storey buildings within backyards.

* Building site coverage per dwelling is excessive.

* Proposal does not meet all the relevant sections of Clause 55 of the Banyule Planning Scheme.

* Infrastructure implications (i.e. increased run-off, extra sewerage), resulting in increased rates.

9 Although not formally required, the application was referred to Vic Roads who raised no objection to the proposal subject to the incorporation of certain conditions with any permit that may issue.

10 At its meeting on 8 December 2003 the Council resolved to refuse to grant a permit on the following grounds:

* The proposal does not sufficiently comply with clause 55 of the Banyule Planning Scheme.

* The proposal is contrary to the Banyule Neighbourhood Character Strategy.

11 The subject application for review was lodged on 3 February 2004. The stated grounds for review were that:

1. The proposal is in accord with the State and Local Planning Policy Frameworks.

2. The proposed development is in accord with the intent of Clause 55 of the Banyule Planning Scheme.

3. The proposal is compatible with the character of the neighbourhood.

4. The proposal is not an overdevelopment of the site.

5. There will not be excessive overshadowing, overlooking, light spill or noise.

6. The proposal will not significantly affect the privacy of neighbours.

7. The area proposed for landscaping is adequate, and significant neighbouring trees will not be affected.

8. Car parking and car access are satisfactory and use of the right of way is satisfactory.

12 The principal issues for consideration in respect of this application for review fall into the following categories:

13 The subject land is situated in Precinct GS9 of the Banyule Neighbourhood Character Strategy. Under the Residential Neighbourhood Character policy at clause 22.07-3 of the planning scheme the key characteristics are described as follows:

... a spacious leafy character in generally formal garden settings, with space around and bet ween dwellings, a relatively wide and open street space, and garden style vegetation, often mature and exotic, in both the private and public domain, creating an attractive, tree-dominated landscape setting in some streets. The most important characteristics of the area type are the scale, siting and style of the dwellings and the vegetation and topography of their settings.

14 The desired future character of the GS9 Precinct is to be maintained by:

* Designing new dwellings and extensions in a style sympathetic with existing dwellings in the precinct.

* Positioning new dwellings and appurtenances in keeping with the setbacks of nearby dwellings.

15 There was no dispute between the parties that the style of the proposed dwelling with brick veneer walls at ground floor, lighter elements at first floor and pitched tiled roof provides a design in keeping with that prevailing in the surrounding area. However, concern was expressed by Ms Pettifer and Mr Clancy in regard to the introduction of a second dwelling on the site and the consequent impact on their amenity. Those issues will be discussed later in this decision.

16 It is an established part of state and local planning policy within the Banyule Planning Scheme that urban consolidation and increased diversity of housing is encouraged in appropriate well serviced areas. The subject locality is one such place. It is also necessary to acknowledge that double storey development, which is a common existing form of housing within the locality, is an acceptable type of development if carried out in conformity with the relevant provisions of the scheme and without imposing unreasonable impacts on neighbouring properties.

17 Ms Kellock made it clear that the Council considered that the new dwelling will integrate successfully with the character of the neighbourhood as it incorporates a number of prevailing characteristics of the surrounding built form. In addition it was considered that the layout of the new dwelling on the site provides reasonable landscaping opportunities with a 5.5 metre setback from the northern boundary providing good solar access and space for the planting of canopy vegetation.

18 However, Council was concerned that the proposed layout provides minimal opportunities for the planting of canopy vegetation within the rear yard of the existing dwelling where the private open space is constrained by its irregular shape and minimal width.

19 Ms Kellock tabled a shadow diagram demonstrating the effect of shadows cast by the property immediately to the north of the subject site at 148 Rosanna Road. Although it is an existing situation which is accentuated by the dwelling at no. 148 being in a higher topographic position, the introduction of a second dwelling to the subject site and in particular the location of the proposed garages means that the existing dwelling will have inadequate solar access. The diagrams show that the vast majority of the available space will be overshadowed at 9 am and that at approximately 65% will be overshadowed at 3 pm. The level of overshadowing is therefore considered contrary to the objectives of clause 55.

20 For similar reasons, the Council considered that the proposed layout provided inadequate landscaping opportunities for the existing dwelling contrary to the landscaping objective at clause 55.03-8 of Res Code and the Banyule Neighbourhood Character Strategy with regard to vegetation cover.

21 In order to address these concerns Ms Halls discussed an alternative plan which changed the location of the garages by moving them from the northern boundary to the central spine of the site thus providing a 4 metre setback. The effect of this change is to increase both the length and the width of the secluded private open space for the existing dwelling and to improve its solar access. The amount of private open space for the proposed dwelling will also be increased.

22 The alternate plan also provides for the concrete driveway on the south side of the existing dwelling to be removed and to be reinstated as landscaping. Under the revised plan all vehicle access will be via the right of way to the south of the subject site and a tandem car space would be provided in front of each garage.

23 I am satisfied that this change to the layout contained in plans prepared by Andrew Ramage dated 5 April 2004 in drawing nos. TP1-TP4 will satisfactorily address the need to provide increased solar access to the existing dwelling and provide greater opportunities for canopy tree planting and landscaping on the subject site.

24 The central thrust of the well argued submissions by Ms Pettifer and Mr Clancy was the opposition to an intensification of housing in their immediate area by the introduction of a second dwelling with a two storey component in the rear garden of an adjoining property. As a consequence they were concerned that their amenity would be adversely effected by a loss of visual privacy, daylighting and solar efficiency. Concern was also expressed with regard to the impact of building on adjacent trees along the common boundary and concerns that the use of right of way for access to the subject site may promote its use as a thoroughfare for people wishing to take a short cut or avoid congestion on main roads.

25 With regard to the extent of development on the site I note that the site cover represents only 36.7% of the area and that the upper floor of the dwelling is less than half of the area of the ground floor at 44%. Examination of the shadow diagrams indicates that the shadows cast by the proposed dwelling principally fall on the right of way to the south but that at 3 pm on 22nd September, the measurement day, a small triangle of shadow intrudes on the south west corner of the rear garden of Ms Pettifer's property at 21 Kathleen Street. I have found that the extent of shadowing cannot be considered unreasonable and that there would be adequate access to direct sunlight and daylight. In regard to visual privacy I note that there are no windows in the upper floor on the east or south elevations and that the windows on the northern elevation associated with bedroom 2 and the bathroom will be glazed with obscure glass. Consequently there will be no opportunities for overlooking of adjacent rear private open spaces or habitable room windows. I am further satisfied that existing vegetation and out buildings on adjacent properties combined with the proposed fencing and landscaping arrangements for the subject site will adequately address visual privacy issues at ground level.

26 A condition of permit will require the provision of a report by an arborist outlining the measures necessary to protect the trees at 21 Kathleen Street adjacent to the eastern boundary of the subject site during construction.

27 I am further satisfied that the right of way can be constructed and landscaped in a manner that will define it as a domestic access rather than a through road to passing motorists.

28 Having regard to the foregoing I have concluded that the proposal if development in accordance with the permit conditions can be regarded as exhibiting satisfactory compliance with the provisions of the Banyule Planning Scheme without imposing unreasonable amenity impacts on neighbouring residents.