1. The original application for permit proposed a three storey building plus basement level to contain 7 dwellings and was refused by Hobsons Bay City Council. Following an application to review this decision, the Tribunal directed notice of the application be given to property owners and occupiers of nearby properties and by placing a notice on the site. The required notice was given in March 2011. Statement of Grounds objecting to the proposal were received by the Tribunal.
2. The matter was listed for hearing on 16 September 2011 before me when the applicant requested that amended plans be substituted for the plans that accompanied the original application for permit.
3. Mr Chau, the architect, who prepared the plans for this proposal provided a detailed explanation of the changes in the amended plans at the hearing. The changes included the reduction in the number of dwellings from 7 to 3, altered floor layouts, new windows, changed setbacks and replacement of a proposed second floor with a roof deck.
4. I determined that I would not substitute the plans at that time and issued an Order directing that notice of the amended plans be given in accordance with the procedures set out in Planning and Environment List Practice Note - PNPE9 Amendment of Plans and Applications.
5. Following the circulation of amended plans, further Statements of Grounds were received by the Tribunal. The matter was listed for a hearing on 12 December 2011. At the hearing Mr Lowen requested that I substitute the amended plans. After hearing from the parties I allowed the plans to be substituted.
6. At the hearing Ms Lunn advised that, based on the amended plans, the Council position was one of support subject to permit conditions that would require changes to the layout. The applicant had been made aware of the changed Council position, although only a few days before the hearing.
7. The respondent objectors were taken by surprise by Council's changed position. They advised they had based their submissions on the expectation that Council opposed the application on grounds in the Notice of Refusal. In these circumstances I found it appropriate to allow an opportunity for additional submissions. I have considered additional written submissions received following the hearing.

1. It is the applicant's submission that the proposal, that includes apartment style accommodation, will contribute to the mix of dwellings in the area and provide accommodation for a diverse range of people whose needs are not currently met by the single dwelling and townhouse type development currently existing in the area. Furthermore, the location of the review site near bus services, local shops and parkland, in the applicant's view, supports increased density of development.
2. Respondent objectors argued that the proposal is too intense for the site and the area and pointed out that the site is at least 2.4km from the nearest train station.
3. The review site has reasonable proximity to services and facilities in Council's view and is in an area with established infrastructure and proximity to parkland.
4. I find support in State and local policy[3] for residential development that will increase housing density and diversity in established areas, take advantage of existing infrastructure and contribute to housing choice in areas with accessible services and facilities. I acknowledge that the train station is some distance from the review site as is a major activity centre, but I find the proximity to bus services, a local activity centre and parkland provide support for a three dwelling development on the review site.
5. State and local policy[4] also specify that development must be respectful of neighbourhood character and be designed to respond to context. I address this matter next.

1. The applicant submits that the design of the proposal incorporates appropriate features to respect neighbourhood character including:
   • Side setbacks that allow a connection between the street and rear parkland, an improvement on the common boundary to boundary constructions nearby.
   • A scale that is appropriate in the street, less than the adjoining dwelling at 80 Graham Street and proportionate to the large street trees.
   • A contemporary approach that includes a varied palette of materials that provide articulation and reflect the changing streetscape.
   • A staggered front setback that creates a fluid transition with adjacent properties and suggests a single dwelling in the streetscape.
   • Appropriate provision for landscaping including canopy trees that will enhance the garden streetscape.
   • Basement car parking that minimises crossings and is a common approach to development.
2. Respondent objectors raised concerns about the excessive height and bulk of the building, the lack of graduation between adjoining buildings, a design that is unsympathetic to nearby development and dominant in the streetscape, minimal opportunity for landscaping and external materials that do not reflect the finishes of nearby development.
3. Council submits that the amended proposal is an acceptable response to neighbourhood character subject to changes that provide an increased front setback that will meet the average of adjoining dwellings, relocation of bin store from the front setback, deletion of the passing bay and associated increase in landscaping opportunities to the street.
4. There is considerable emphasis in the Scheme in State and local policy, the purpose of the Residential 1 zone and the ResCode provisions on ensuring new development is respectful of neighbourhood character and responds to site context. Local policy seeks to ensure that new development responds to the preferred neighbourhood character and retains and enhances identified elements that contribute to the character. The review site is located within Precinct 13[5] where consistent lot sizes, front setbacks and the single storey nature of the built form provide a cohesiveness and tall street trees and blue stone kerbing are distinctive. The preferred character is to maintain the distinctiveness of the streets and the cohesive, low scale nature of the built form. Objectives and design responses to achieve this outcome are specified for the precinct.
5. My inspection of the area indicated that despite the single storey 1950s era housing predominating in the immediate area of the review site, there is significant contemporary development nearby that includes a side by side dual occupancy at 82 Graham Street, a more recent double storey dwelling to the immediate north and other contemporary development. There are common elements despite the mix of development including consistent front setbacks, front gardens visible to the street, car parking in line or behind the front setback of dwellings and street trees that create an attractive setting.
6. Although I find the design of the development presents some positive features and could be modified to improve presentation to the streetscape, I consider there are some elements of the proposal that are unacceptable. I consider each interface as follows.

1. There are appropriate features of the design in its presentation to the street including the articulation provided by varied setbacks, inclusion of a balcony at upper level, a variety of external materials, an angled roof line and side setbacks that provide a sense of space between built forms. However there are several elements of the design that I find an unacceptable response to the street.
2. The front setback that is forward of the adjoining dwelling to the south at 76 Graham Street combined with the upper level balcony that will cantilever over the lower level will create a built form that is intrusive in the street. I agree with Council that the proposal should be modified to meet the front setback standard of the Scheme that requires a setback of 6.3m.[6]
3. The extensive hard surface in the front setback that accommodates a bin store and a 7.5m wide paved area for pedestrian and vehicle access, that includes a passing bay will present unattractively to the streetscape. Such a layout results in significant loss of front garden contrary to objectives for the precinct.
4. A 1.8m high steel picket fence setback 2.9m from the frontage is proposed to enclose an area for private open space for Unit 1. The fence includes a return that encloses the south side of the front setback. I consider this fencing, even with the bin store removed, creates an unacceptable interface with the street and is contrary to local policy that seeks to maintain the openness of the streetscape and views to front gardens. As Unit 1 includes a balcony at upper level with access off the living room, I consider it unnecessary to provide a ground level secluded private open space of the size proposed where the consequences create an adverse neighbourhood character outcome.
5. Although I find the double storey height combined with the modulation provided by various façade treatments will result in an acceptable response to the adjoining two storey dwelling to the north, I am concerned about the transition to the single storey dwelling to the south. I consider the design response that has incorporated the highest part of the building, the highest part of the angled roof line and a setback forward of the adjoining dwelling to the south will create a built form that is intrusive in the streetscape and unacceptably dominant to the adjoining property.
6. Some of the concerns I have about the streetscape presentation could be dealt with by permit conditions that require alterations to the plans as suggested by Council. I note that the applicant indicated[7] that the proposal could be 'mirrored' to allow the lift core to be on the north side, a layout that would also allow retention of the existing crossing. Whilst there may be some merit to such an amendment and to the alterations suggested by Council, I consider the combination of concerns together with further matters addressed below, make modification of the proposal by permit conditions inappropriate.

1. The adjoining property to the south is occupied by a single storey weatherboard dwelling that has outlook to the review site from dining and kitchen windows. An outdoor area that includes a spa with a shadecloth above is located immediately to the south of the review site. To the east of the spa is a habitable bungalow that includes two north facing windows. This creates a sensitive interface that, in my view, the proposal has not adequately addressed. I say this for the following reasons.
2. Firstly, the first floor wall combined with screened roof deck above extends to a height of 8m diagonally opposite the kitchen window and directly opposite the outdoor area and a habitable room windows of the bungalow. This wall is setback 2.45m from the common boundary. I find the height and mass of building in this location is not respectful of neighbourhood character, will result in unacceptable visual bulk to sensitive areas in the adjoining dwelling and reflects a poor response to context. In reaching this view I have had regard to the setback failing to comply with the Scheme standard relating to side setbacks that would require a setback of 3.09m.
3. Secondly, I consider that given the building height and setback proposed, the design should allow opportunity for landscaping along the southern boundary to soften the impact of the built form when viewed from habitable room windows and secluded private open space. The proposed basement that extends boundary to boundary will not allow for in-ground planting and opportunity for planting that will be visible above the fenceline is limited.

1. The existing house to the north presents with an extensive wall to the common boundary with the review site that is two storey for some 16m length and approximately 26m long at ground level. This elevation creates a strong built form visible to the street and to the review site. I consider the proposal that incorporates a similar length of wall that will approximately correspond to the length of wall on 80 Graham Street is a reasonable design response to the site context and neighbourhood character. Although the two storey section of the proposal extends beyond the two storey section at 80 Graham Street, the sensitivity of that interface is limited due to the absence of habitable room windows or private open space that is used for other than service yard purposes.
2. The section of wall that contains the stairwell window for Unit 1 is setback 1.4m from the northern boundary in lieu of the 2.5m required to meet the standard for side setbacks. This reduced setback is opposite upper level, south facing bedroom windows of 80 Graham Street. Whilst variation to standards can be allowed, I consider the visual bulk impacts from a reduced setback in this location are unacceptable and reflect a poor response to context.

1. To the rear of the site the proposal is setback 5.5m with a balcony extending to within 3.4m. The elevation to the east shows a flat roof design and extensive glazing to both levels. I am satisfied this presents an acceptable interface with the adjoining parkland. The setback is sufficient to allow for some landscaping, noting that the basement is setback 3.3m from the rear boundary, and the nearby rear yards adjoining the park commonly contain various outbuildings creating a character that is not one of consistently open rear yards. The proposed built form, although substantial, will be setback from side boundaries and is modulated by the inclusion of the balcony. The opportunities for passive surveillance of the park will contribute to public safety and the inclusion of a shared pedestrian access via the basement accords with objectives[8] that seek integration of development with adjoining public open space.

1. Respondent objectors raised concerns about overlooking, overshadowing, daylight, noise, fumes and visual bulk. The issue of visual bulk has been considered in dealing with neighbourhood character and site context above. The above matters I address as follows.

1. To the south I am satisfied that the proposal acceptably limits overlooking. A first floor bedroom window has a sill height of 1.7m above floor level, a first floor study and the south side of the roof deck are screened.
2. On the north elevation at first floor level the stair window is screened, the bathroom window has a sill height of 1.7m above floor level and a bedroom window incorporates obscure glazing to a height of 1.7m. Some additional measures are required to limit views from the roof deck to south facing upper level bedroom windows and from the kitchen to an east facing bedroom/dressing room window at 80 Graham Street.
3. Outbuildings in rear yards of the adjoining sites limit unreasonable loss of privacy from the first floor east facing balcony and eastern side of the roof deck. Treatment of the first floor balcony to limit downward views to the ground level secluded private open space of Unit 2 would be required to address internal overlooking.

1. Shadow diagrams submitted as part of the amended plans indicate shadows cast over the north facing habitable room windows of the dwelling, bungalow and part of the secluded private open space on 76 Graham Street at 9am, 12 midday and 3pm at the equinox. There are two key standards in the Scheme relating to shadows. Whilst the proposal complies with the standard relating to overshadowing open space, the north facing window standard is not met.
2. The southern wall of the proposal is setback between 2.45m and 4.1m opposite the habitable room windows of the dwelling and bungalow of 76 Graham Street. The varying height of the southern wall would require a setback that varies between 3.38m and 4.68m to meet the standard. I find the failure to meet the standard an unacceptable design response to important north facing windows.
3. A submission from Mr Chau received after the hearing[9] includes a plan that showed the location of north facing habitable room windows at 76 Graham Street[10] and included sectional shadow diagrams that demonstrate that 3pm shadows at the equinox do not fall on the kitchen and dining room windows. In this submission, Mr Chau pointed out that the shadows are primarily generated by the lift core and this is setback considerably from the common boundary and even a two storey house on the review site would cast some shadows to these window.
4. I acknowledge the sections provided demonstrate the three dimensional shadow effect however this does not persuade me that the design which incorporates the highest element opposite north facing habitable room windows and which fails to meet the standard relating to north facing windows is an appropriate response that limits adverse impact on amenity.

1. The standard relating to daylight to existing windows requires provision of a light court with a minimum area of 3m², a minimum dimension of 1m clear to the sky and the calculation may include land on the abutting lot. I am satisfied that this standard is met and the proposal will allow adequate daylight into existing habitable room windows.

1. Concern was raised about increased noise from additional residents and fumes from the basement car park. I consider noise impacts arising from two additional dwellings are unlikely to be unreasonable or anything other than what is associated with residential use of land. Appropriate ventilation of the basement car park would ensure unacceptable impact from the emission of fumes.

1. Respondent objectors raised concerns about additional parking and traffic that would be generated on Graham Street given that it is narrow, already significantly used for parking and serves as a through road. The lack of onsite visitor parking and the cumulative impact of traffic generated by additional dwellings in the area was of particular concern.
2. The inclusion of two dwellings containing two bedrooms and one three bedroom dwelling generates a requirement for four car spaces under the applicable standard in the Scheme.[11] The development incorporates basement parking that provides for 6 car spaces which meets the standard and is thus acceptable.
3. One of the basement car spaces is designated as a visitor space. The standard does not require the provision of a visitor car space for a three dwelling development and I acknowledge the practical difficulties of providing visitor access to basement car parking. If I were not rejecting the proposal for other reasons, I would require all basement parking to be designated for resident parking. Whilst I acknowledge that parking onstreet is in demand I am not persuaded that there is no capacity for the likely visitor parking demand generated by three dwellings.
4. I consider the increased traffic likely to be generated by two additional dwellings can be accommodated in Graham Street and the surrounding street system. I acknowledge that there is a cumulative traffic impact from increased dwelling density that may, in the long term, require traffic management but I cannot reach the conclusion that this proposal should be rejected based on additional traffic. In making this finding I have had regard to the Council raising no concerns about traffic impacts.
5. If I were to direct that a permit be granted, alterations to the basement layout and ramp access, deletion of the passing bay and inclusion of requirements for fencing and mirrors to improve sightlines would have been required. A reduction in the width of the crossing to 3m would also have been required together with Council arborist advice on protection of the established street tree to the north of the proposed crossing.

1. Respondent objectors raised concerns about the impact of the basement construction on the structural integrity of their properties and about asbestos removal. These matters are not planning issues but are dealt with under other permissions required.
2. The adequacy of private open space for future residents was questioned by respondent objectors. I do not share this concern. Each dwelling is provided with either a balcony, roof deck or ground level space of dimensions that meet the specified standard,[12] has access from a living room and some orientation to the north.

1. This proposal has a number of positive aspects. It is supported by planning policy that seeks increased density and diversity of dwellings in established areas, the design responds well to the parkland to the rear, is respectful of dwelling spacing, provides adequate car parking and a good standard of internal amenity. There are however a number of elements that are unacceptable including the visual bulk to the south, the presentation to the street in terms of graduation of height to the adjoining single storey dwelling, the front setback, the extent of hard surface, the location of bin enclosure and the amenity impacts from overshadowing to the south. Although some of these matters could be addressed by modification to the plans, I consider the combination of concerns warrant a redesign that, in particular, responds to the sensitive interface to the south.
2. For the above reasons, I affirm the decision of Council[13] and direct that no permit be granted.

[1] The description of the proposal is based on the substituted plans.

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

[3] At clauses 16 and 21.06 of the Scheme.

[4]Including clauses 15, 21.06 and 22.08 of the Scheme.

[5] Pursuant to clause 22.08 of the Scheme.

[6] Application of Standard B6 at clause 55.03-1 of the Scheme specifies the average distance of the setbacks of buildings on the abutting allotments or 9m whichever is the lesser.

[7] In a submission made after the hearing made with my leave.

[9] In response to further submissions by respondent objectors and in accordance with my Order.

[10] These windows had not been indicated on the site analysis.

[13] Although the Council supported the amended plans, the original decision was a refusal and the application is to review this decision.